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.

Rules and Regulations Federal Register

85497 

Vol. 85, No. 249 

Tuesday, December 29, 2020 

1To view the proposal and comment period 

reopening documents, the comments we received, 

and supporting documents, go to http://

www.regulations.gov/#!docketDetail;D=APHIS2018-0041. 2 84 FR 30040. 

3 85 FR 34537–34541. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2018–0041] 

RIN 0579–AE48 

Amendments to the Pale Cyst 

Nematode Regulations 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the 

domestic quarantine regulations for pale 

cyst nematode by adding procedures 

that allow persons to review and 

comment on the protocols for regulating 

and deregulating quarantined and 

associated areas. As part of this action, 

we have made the protocols available 

online. We are taking these actions in 

response to a court order requiring the 

Animal and Plant Health Inspection 

Service to provide a means for public 

input on the protocols we use to 

deregulate fields for pale cyst nematode 

and to make the protocols publicly 

available. These changes make the 

protocols accessible to all and give 

persons the opportunity to comment on 

them. 

DATES: Effective January 28, 2021. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynn Evans-Goldner, National Policy 

Manager, Office of the Deputy 

Administrator, PPQ, APHIS, 4700 River 

Road, Unit 137, Riverdale, MD 20737; 

(301) 851–2286; lynn.evans-goldner@

usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The pale cyst nematode (PCN, 

Globodera pallida) is a major pest of 

potato crops in cool-temperature areas 

throughout the world, causing 

significant yield losses if left 

uncontrolled. Other hosts of this 

destructive pest include tomatoes, 

eggplants, peppers, and some weeds. 

The spread of PCN in the United States 

could result in a significant loss of 

domestic and foreign markets for U.S. 

potatoes and other host commodities. 

Section 414 of the Plant Protection 

Act (PPA, 7 U.S.C. 7714) provides that 

the Secretary of Agriculture may, under 

certain conditions, hold, seize, 

quarantine, treat, apply other remedial 

measures to destroy or otherwise 

dispose of any plant, plant pest, plant 

product, article, or means of conveyance 

that is moving, or has moved into or 

through the United States or interstate if 

the Secretary has reason to believe the 

article is a plant pest or is infested with 

a plant pest at the time of movement. 

On March 4, 2019, we published in 

the Federal Register (84 FR 7304–7306, 

Docket No. APHIS–2018–0041) a 

proposal 1 to amend the domestic 

quarantine regulations for PCN by 

adding procedures that allow persons to 

review and comment on the protocols 

for regulating and deregulating infested 

and associated areas. We took this 

action in response to a court order 

requiring the Animal and Plant Health 

Inspection Service (APHIS) to facilitate 

public input into the development of 

protocols for deregulating fields for 

PCN. 

We solicited comments concerning 

our proposal for 60 days ending May 3, 

2019. We reopened the comment period 

for 30 days ending July 26, 2019,2 in 

response to commenters who 

experienced technical difficulties with 

accessing the protocols online. 

One commenter stated that, in the 

proposed rule, we did not adequately 

include scientific support and source 

material for our confirmatory and 

deregulatory field protocols as 

mandated by the court order. To provide 

the public with an opportunity to 

review this material, we published 

another document 3 on June 5, 2020, in 

the Federal Register announcing a 

second reopening of the comment 

period for another 30 days, ending July 

6, 2020. In that document, we explained 

the science underlying each of the field 

protocols and referenced the significant 

sources we consulted for developing 

them. 

We received a total of 25 comments 

during the initial and reopened 

comment periods. They were from State 

agricultural officials, potato producers 

and producer organizations, 

agronomists, attorneys, and members of 

the public. A few comments we 

received expressed general agreement 

with the rule, while the remainder 

questioned or criticized specific 

provisions of the rule, the deregulation 

protocols, and PCN program activities. 

Some commenters raised topics 

concerning PCN program operations 

outside the scope of the proposal and 

deregulation protocols. We discuss the 

relevant comments we received below. 

Comment Period 

A few commenters stated that web 

links to the protocols, which we had 

included in the proposed rule and in a 

mailing sent to affected growers, were 

not connecting them to the protocol 

pages. 

We acknowledge that the protocol 

links were not working during part of 

the initial comment period, so we 

reopened the comment period as noted 

above and provided working protocol 

links to ensure that stakeholders would 

have ample opportunity to comment. 

One commenter asked that the 

proposed rule be republished, with the 

protocols included in the body of the 

rule. 

As we made the protocols available 

for comment on Regulations.gov and the 

APHIS website throughout the reopened 

comment periods, we see no need for 

including them in a republished 

proposed rule. We also note that in the 

Federal Register document announcing 

the second comment period reopening, 

we included details of the scientific 

support and sources we used to develop 

the protocols. 

Changes to the Regulations 

We proposed revising § 301.86– 

3(c)(1), which designates fields with 

viable pale cyst nematodes present as 

being infested, by adding information 

for accessing the APHIS protocol for 

designation of infested fields in 

accordance with criteria established by 

the Administrator. 

We also proposed revising § 301.86– 

3(d)(1) to read that an infested field will 

be removed from quarantine for PCN 

upon a determination that no viable 


KHAMMOND on DSKJM1Z7X2PROD with RULES
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4The deregulation protocols are available on the 

APHIS PCN page at https://www.aphis.usda.gov/ 

planthealth/pcn. 

5September 12, 2007 (72 FR 51975–51988, 

Docket No. APHIS–2006–0143). 

PCN is detected in the field. We stated 

that the determination for removing the 

field from quarantine will be made in 

accordance with criteria established by 

the Administrator and sufficient to 

support removal of infested fields from 

quarantine, and that the removal criteria 

will be presented in an online 

deregulation protocol.4 We also 

proposed revising paragraph (d)(2) for 

associated fields so that it refers to the 

deregulation protocol for those fields, 

also available online. 

In paragraph (d)(4), we included the 

website address for accessing the 

infested and associated field 

deregulation protocols and indicated 

that any subsequent changes we make to 

them will be announced in a Federal 

Register notice and open to public 

comment. We proposed these changes to 

the regulations as a response to the 

court-mandated requirement that the 

deregulation protocols be publicly 

accessible and open to notice and 

comment in accordance with the 

Administrative Procedure Act. 

Deregulation Biosurvey 

Our proposed deregulation protocol 

for infested and associated fields 

includes a 3-year biosurvey. Two 

commenters representing State 

departments of agriculture disagreed 

with using the 3-year biosurvey 

(equivalent to 3 consecutive susceptible 

potato crops) to evaluate for 

deregulation of infested and associated 

fields. Both commenters stated that a 3- 

year biosurvey of infested fields fails to 

sufficiently mitigate the risk of PCN 

spreading to uninfested fields in Idaho 

and in the commenters’ respective 

States. As support, both commenters 

cited the results of a study conducted in 

Norway showing that PCN cysts 

survived for 12 years in infested fields 

free of PCN host plants, and one cited 

a study from Northern Ireland claiming 

a 30-year survival period for PCN cysts 

in fields that were out of potato 

production for 42 years. 

We are making no changes to the 

regulations based on the information 

provided by these commenters as they 

appear to be referring to an APHIS 

deregulation protocol no longer in use. 

Additionally, these commenters did not 

consider the effects of eradication 

treatments on infested fields, which 

shorten the survival period for PCN. As 

noted in the proposed rule, we 

originally included a 3-year 

deregulation biosurvey as part of an 

eradication program in a 2007 interim 

rulemaking 5 that quarantined certain 

areas of Idaho due to the presence of 

PCN. The biosurvey required planting 

PCN host crops in soil from an infested 

field, in a greenhouse, and sampling the 

soil for PCN following each of three 

crop cycles. Negative results for all three 

cycles would be necessary for APHIS to 

deregulate the field. In the 2007 interim 

rulemaking, this biosurvey was the sole 

criterion for deregulation of infested and 

associated fields. 

However, in response to public 

comments and subsequent scientific 

input, we supplemented the 3-year 

biosurvey requirement with the in-field 

bioassay test for evaluating infested 

fields for deregulation. The in-field 

bioassay requires growing three 

susceptible host crops in a field with no 

detections of viable PCN following each 

crop. Under this current deregulation 

protocol, infested fields are required to 

pass a series of laboratory-based 

viability tests that take at least 3 years 

to complete. Once a field passes the 

laboratory-based tests, APHIS requires 

three host crops to be grown over the 

entire field while it remains under 

regulatory control. A field has met 

requirements for deregulation when full 

field surveys following each of the host 

crops are negative for viable PCN. 

We do not dispute the studies cited by 

commenters that PCN cysts can remain 

viable for years in the absence of a host 

crop. However, we have determined that 

the current deregulation protocol, which 

requires growing a host crop in the field 

as part of the evaluation, will effectively 

detect and mitigate viable PCN and 

ensure that fields are not deregulated 

prematurely. 

Another commenter objected to the 

deregulation protocol requirement that 

three potato crops be planted in ‘‘hot 

spots’’ (infestation foci) of a regulated 

field and that those spots be sampled for 

viable PCN cysts with each crop, even 

if the initial sampling of the field 

indicated no viable cysts. According to 

the commenter, his field revealed no 

cysts after APHIS conducted an initial 

sampling, and on those grounds 

questioned why a grower whose field 

showed no cysts after testing could not 

skip over the required iterations of ‘‘hot 

spot’’ planting and sampling, and 

instead move directly to the next phase 

of the protocol. 

We are making no changes in 

response to the commenter. The 

deregulation protocol provides an 

alternate testing strategy when cysts are 

not detected in soil samples for use in 

laboratory-based tests. Three crops of 

potatoes over the entire area of the field 

or within the infestation foci can be 

substituted for the viability and 

greenhouse bioassay testing to achieve 

the same level of detection confidence 

as the laboratory and in-field bioassay 

tests together. 

Two commenters stated that APHIS 

has been successful to date in delimiting 

the extent of PCN infestation in Idaho 

potato fields under the existing survey 

and sanitation requirements. Both 

commenters noted that several fields in 

Idaho are in the process of completing 

bioassays this production season that 

could make them eligible for removal 

from quarantine under the current 

deregulation protocol. They asked that 

APHIS make no bioassay protocol 

changes until the results of the third 

bioassay on these fields are determined 

after the growing season, and added that 

the results of these bioassays should be 

used to inform any future consideration 

of modifications to the bioassay protocol 

with respect to removal of quarantine 

status. If the results cast doubt on the 

ability of three bioassays to detect the 

presence of viable PCN cysts, they 

suggested that APHIS consider 

increasing the number of bioassays 

required for release from quarantine. 

The current deregulation protocol is 

effective at detecting extremely small 

populations and APHIS is considering 

no changes to the bioassay at this time. 

The commenters are referring to several 

infested fields in Idaho being evaluated 

under the greenhouse bioassay to 

determine whether such fields are 

eligible to return to potato production. 

To date, no infested fields have met the 

testing requirements to be fully 

deregulated. At this stage in the 

eradication testing process, the fields 

remain regulated, with measures in 

place to mitigate the movement of soil 

off the field until or unless three crops 

of potatoes have been grown on the field 

and no viable nematodes are detected 

following harvest of each crop. If APHIS 

finds it necessary to change the 

deregulation protocol in the future, we 

would first provide the background and 

scientific basis for those changes and 

solicit public comment on the matter. 

Regardless of the deregulation method, 

if viable nematodes are detected in the 

bioassay of a particular field, the field 

will remain regulated. 

A commenter stated that the infested 

field deregulation protocol includes 

‘‘optional PCN program-sponsored 

eradication treatments’’ but that the 

protocol does not explain what these 

additional eradication treatments are 

and whether they are an option for 

APHIS or for the regulated entity. The 


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6Available at https://www.aphis.usda.gov/aphis/ 

ourfocus/planthealth/plant-pest-and-diseaseprograms/ea/ct_pcn. 

commenter suggested that we clarify 

this explanation in a new proposed rule. 

The optional PCN program-sponsored 

eradication treatments listed in the 

protocol documents are available at the 

option of regulated entities, as long as 

APHIS has sufficient funding and a 

ready supply of treatment materials. At 

present, the treatment options are the 

soil fumigant 1,3-dichloropropene 

(Telone II) and the trap crop Solanum 

sisymbriifolium (litchi tomato). We do 

not agree with the commenter’s 

suggestion that a new proposed rule is 

necessary for explaining this 

information further. 

A few commenters expressed 

concerns that practices required in the 

deregulation protocols could adversely 

affect the environment. One commenter 

stated that if PCN eradication treatments 

include a nematicide such as Telone II, 

additional environmental analysis 

should be undertaken regarding its use. 

Another commenter stated that in-field 

pressure washing, steam sanitation, soil 

sampling, and host and trap crop 

planting have environmental 

implications and noted that issuance of 

a final rule in the absence of an 

environmental analysis will violate the 

National Environmental Policy Act 

(NEPA, 42 U.S.C. 4321 et seq.) and its 

implementing regulations. 

We are making no changes in 

response to the commenters. This rule 

does not require such an analysis under 

NEPA requirements. The rule adds no 

provisions and makes no changes to the 

protocols themselves or how they are 

applied. We note, however, that we 

have conducted several environmental 

assessments 6 to evaluate the use of 

fumigants, trap crop planting, and other 

field treatments and mitigations with 

regard to PCN. 

Deregulation of Associated Fields 

As noted above, we proposed revising 

§ 301.86–3(d) to indicate that, as with 

infested fields, criteria for deregulating 

associated fields are included in a 

protocol available on the PPQ website. 

For associated fields remaining in host 

crop production, the deregulation 

protocol requires that two host crops be 

grown, each followed by a full field soil 

survey. If lab results are negative for 

PCN in both surveys, the field will be 

deregulated. Statistical analyses have 

shown that APHIS’ delimiting survey 

rate of 8,000 cubic centimeters of soil 

(approximately 20 pounds (lbs) per acre) 

has a greater than 95 percent probability 

of detecting small populations of PCN 

after one host crop, and closer to 99 

percent probability of detecting PCN 

after two host crops. 

A commenter expressed concern 

about inconsistencies in how APHIS 

determines what land should be 

regulated for PCN and stated that he has 

never heard of a clear deregulation plan 

for associated fields where no 

nematodes have ever been found. 

Complete deregulation protocols for 

infested and associated fields, including 

associated fields where no nematodes 

have been found, are available at 

https://www.aphis.usda.gov/ 

planthealth/pcn. Under § 301.86–3(c)(2) 

of the regulations, APHIS may designate 

a field as an associated field if host 

crops have been grown in that field in 

the past 10 years and if the field came 

into contact with a regulated article 

from a PCN-infested field in the past 10 

years. Included among the regulated 

articles listed in § 301.86–2 is any 

equipment or conveyance used in an 

infested or associated field that can 

carry soil if moved out of the field. 

Although we proposed no changes to 

these sections of the regulations, 

provisions for deregulating associated 

fields are included in the protocols and 

for this reason we are responding to 

comments we received regarding farm 

equipment and field quarantine status. 

A commenter asked if potato seed 

farms should be regulated when they 

have an association with an infested 

field. 

If a field used as a potato seed source 

is suspected of having or confirmed to 

have a PCN infestation, it will be 

regulated accordingly. Potato seed 

produced on a regulated field is 

considered to be a regulated article and 

as such is subject to movement 

restrictions. Any field that has come 

into contact with a regulated article 

(such as seed produced on an infested 

field) will be regulated as an associated 

field. Any fields that are identified as a 

seed source for an infested field will be 

prioritized for survey but are not 

included as part of the regulated area 

until or unless survey results are 

suspect or positive for PCN. 

Field Borders and Barriers 

Under § 301.86–3(c)(2)(i) of the 

regulations, APHIS will designate a field 

as an associated field on the basis of 

adjacency when PCN host crops have 

been grown in the field in the last 10 

years and the field borders an infested 

field. Although we proposed no changes 

to this paragraph, we are responding to 

comments received regarding field 

borders and regulatory status because 

the status of such fields is contingent on 

the deregulation protocol for associated 

fields. 

To deregulate an associated field 

under this process, the field owner must 

establish a buffer zone of uncultivated 

ground at least 15 yards wide along the 

entire interface with the infested field. 

The buffer zone must include a physical 

barrier, such as a ditch, berm, or fence 

to discourage transfer of soil or other 

regulated articles between the two 

fields. The field must also meet the soil 

survey requirement for deregulation of 

an associated field. Establishing a field 

buffer zone is entirely voluntary for the 

owner of an adjacent field seeking to 

expedite the process to deregulate a 

field. 

One commenter stated that the border 

buffer requirements constitute a taking 

of the neighbor’s property and another 

commenter agreed, stating that farmers 

should be compensated for having to 

take land out of production for buffers. 

Another commenter noted instances in 

which APHIS required trenches or other 

barriers between fields on bordering 

farms even after a field was released 

from regulation and stated that barriers 

encroach on the land of innocent 

neighbors. 

We disagree that establishing buffer 

zones to mitigate the spread of PCN 

between fields constitutes a taking of 

property, particularly as establishing 

such a zone in an associated field is 

voluntary on the part of the landowner. 

Creating an uncultivated buffer zone 

between an adjacent field and an 

infested field is a scientifically 

established means for expediting 

deregulation of the adjacent field before 

the infested field is deregulated. 

Deregulation of Fields no Longer in Host 

Crop Production or Agricultural Use 

We have made publicly available the 

deregulation protocols for fields no 

longer in host crop production and 

fields no longer in agricultural use. We 

received comments regarding the 

deregulation of such fields. 

One commenter asked if a change in 

the use of regulated fields to nonagricultural use—such as for housing or 

pasture—would allow regulation of 

those fields to be lifted. Another 

commenter objected to APHIS 

continuing to designate a field as 

associated for PCN even though the 

property includes a home and grass 

lawn and is too small for growing a 

profitable host crop, and cysts have 

never been found there. The commenter 

asked whether a change in the use of the 

property to a non-agricultural use, such 

as a gravel pit, would be sufficient for 

APHIS to deregulate it. Another 

commenter cited the case of a 


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7More information about sampling rates and cyst 

viability is included in the comment period 

reopening document (85 FR 34537–34541, Docket 

No. APHIS–2018–0041, June 5, 2020), which can be 

accessed through the link in footnote 1. 

homeowner who asked APHIS to 

remove land connected to his yard from 

associated field status but was told he 

would need to follow the deregulation 

protocol. The commenter suggested that 

APHIS allow growers to opt out of the 

deregulation program for a portion of 

their ground if they choose to subdivide 

the property for housing. 

We are making no changes based on 

the comments. The protocols already 

include provisions for deregulating 

fields that will not return to host crop 

production and will transition to other 

uses such as residential or commercial 

development or pasture. The exact 

requirements for deregulating a field 

that has been taken out of host crop 

production depend upon the nature of 

the land’s intended future use and the 

level of PCN risk in the field at the time 

of deregulation. 

Another commenter asked if a former 

large farming operation on regulated 

fields now functioning as a hobby farm 

still needs to be regulated for PCN, 

particularly as the host crops grown are 

only sold locally. 

As all regulated fields can pose a PCN 

risk, hobby farms established on 

regulated fields that produce host crops 

must follow the same deregulation 

protocol as large-scale agricultural fields 

remaining in commercial host crop 

production. 

Sampling and Testing Procedures 

We received several comments 

regarding the soil sampling and testing 

procedures we use in the field 

deregulation protocols. We have 

established in the protocols specific soil 

sampling rates per acre, the findings of 

which are used to map the distribution 

and population of cysts in infested 

fields. Cysts discovered during sampling 

are tested for viability.7

One commenter asked how we 

determined soil testing rates, noting that 

any rates determined from an agreement 

between the United States and Canada 

are not based on scientific testing rates. 

While survey rates are often listed in 

agreements between countries, the rates 

themselves are based primarily on 

scientific research within APHIS and 

data from the scientific community. 

A commenter asked if soil testing 

rates were determined by the Technical 

Working Group, noting that any rates 

based on the work of that group violate 

the District Court’s order that APHIS 

may not rely upon the advice or 

recommendations of the Technical 

Working Group in any future actions. 

As we noted in the document 

reopening the comment period for the 

proposal, the methodology for soil 

testing under the PCN program was 

drawn from scientific best practices and 

experience gained from our work in the 

APHIS Golden Nematode Program. 

A commenter stated that our methods 

of proof of a PCN find are flawed, noting 

instances of fields where small numbers 

of nematodes were initially found but 

which subsequently disappeared 

without receiving any field treatments. 

We disagree with the commenter that 

our methods for detecting PCN are 

flawed. The detection and subsequent 

absence of nematodes in a sample from 

an untreated field is not an unusual 

occurrence and cannot be ascribed to a 

problem with our methodology. Several 

factors can influence detection of PCN, 

including the aggregate distribution and 

infestation level of the pest in a field. 

One commenter recommended that 

the protocol survey regimen of 40 lbs 

per acre on associated fields could be 

reduced to the European protocol of 

1.28 lbs per acre. Another commenter 

stated that APHIS’ soil sampling 

requirements for the deregulation 

protocol are 10 times the world 

standards and recommended that we 

use the world standard of 2 lbs 

maximum. Similarly, a commenter 

stated that since PCN is on the world 

eradication list, then Idaho should use 

the same lower level of soil testing that 

our trading partners use. 

We are making no changes in 

response to the comments. APHIS’ goal 

is to contain and eradicate PCN in Idaho 

to protect all U.S. growers from the 

yield losses experienced by growers in 

other countries that take different 

approaches to managing PCN. PCN is 

managed in Europe because it is 

endemic and widespread and therefore 

less intensive surveys are sufficient if 

the goal is management and not 

eradication. However, PCN populations 

in Europe continue to increase and seed 

potato acreages are reduced annually as 

a result. The purpose of this program is 

to ensure the same thing does not occur 

in the United States. We determined 

that the current soil testing procedures 

we use are necessary and appropriate to 

achieve program goals. 

A commenter stated we did not 

indicate the soil depth at which field 

samples are to be collected for the 

deregulation protocol, resulting in 

uncertainty about APHIS’ ability to 

mitigate the PCN risk. The commenter 

cited soil samples in Norway and 

Northern Ireland surveys that were 

taken at depths of 9 to 17 centimeters 

and 70 centimeters, respectively. 

Similarly, two other commenters 

expressed concern that the methods 

used to collect samples for testing in 

APHIS-approved laboratories are 

scientifically invalid because soil 

samples are only collected from the top 

2 inches of the soil. 

Soil samples are collected at the field 

surface; however, tillage and potato 

harvest practices in southeast Idaho 

thoroughly mix the top 30 centimeters 

(cm) of the soil profile. Therefore, 

subsequent surface sampling effectively 

represents the top 30 cm of the soil 

profile. We consider this soil sampling 

depth to be adequate to detect the 

presence of PCN in Idaho, the only State 

in which PCN is known to exist. 

A commenter stated that the 

nematode soil extraction methods 

required by APHIS in PCN laboratories 

are expedited, causing very low 

recovery rates and further invalidating 

the confirmatory policy. 

We are uncertain as to what specific 

problem the commenter is citing. APHIS 

follows extraction protocols based on 

best practices described in scientific 

literature, which include a minimum 2- 

week soil drying period and a qualitycontrolled laboratory environment in 

which the samples are processed. 

Two commenters stated that growers 

should be able to have an independent 

lab conduct soil testing and compare 

their results with APHIS’ findings, with 

one commenter expressing doubts about 

the reliability of DNA testing conducted 

by APHIS. 

We do not prohibit a field operator or 

owner from employing independent 

PCN testing of their fields. However, we 

note that as soil in regulated fields is 

considered a regulated article, it cannot 

be moved from such fields without 

APHIS authorization. Moreover, soil 

testing can only be administered at 

APHIS-permitted facilities under 

methods approved by APHIS. For any 

third-party sampling effort to be 

recognized by APHIS as a valid 

comparison, we must provide oversight 

of field sampling and laboratory 

extraction to ensure APHIS protocols 

are followed. 

A commenter requested that we no 

longer require tare dirt testing for exotic 

nematodes, adding that if APHIS does 

not require testing from our trading 

partners then APHIS should not be 

doing it domestically. 

We are making no changes in 

response to the commenter. Tare soil 

sampling has never been a requirement 

of the APHIS PCN domestic program. 


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Farm Machinery and Nonfarm 

Conveyances in Regulated Fields 

As a regulated article under § 301.86– 

2, farm equipment and conveyances 

used in an infested or associated field 

that can carry soil out of the field are 

subject to pressure washing and steam 

sanitation requirements. These 

requirements constitute part of the 

deregulation protocols for infested and 

associated fields. 

A few commenters stated these 

requirements have resulted in damage to 

the paint and computer components of 

their farming equipment and requested 

that APHIS provide them with 

compensation for damages. 

We acknowledge that in the past there 

have been instances in which sanitation 

measures necessary for mitigating PCN 

have impacted farming equipment. 

However, through years of experience 

we have developed and applied 

approaches to sanitizing equipment that 

minimize or prevent instances of 

damage. 

A commenter stated that equipment 

sanitation requirements were 

burdensome because it takes time to 

sanitize equipment and APHIS will not 

verify completion in a timely way. One 

commenter recommended that APHIS 

employ two sets of equipment cleaning 

teams at earlier and later hours so the 

whole day is covered. 

We are aware of the time and effort 

required of growers to fulfill the 

sanitation requirements but note that 

doing so is essential to mitigating the 

spread of PCN. We have worked to make 

it easier for growers to meet these 

requirements by expanding our hours of 

service and implementing a central 

hotline for requesting sanitation services 

and scheduling appointments after 

hours, Saturdays, and on Federal 

holidays. 

Some commenters stated that APHIS 

is inconsistent and arbitrary in how it 

establishes and enforces PCN 

regulations with respect to moving 

equipment and conveyances in and out 

of regulated fields. One such commenter 

noted that straw and alfalfa can be 

moved off an infested field while 

combines and other equipment used for 

harvesting must undergo sanitation as a 

regulated article, and yet power 

company equipment and third-party 

vendors move vehicles in and out of 

quarantined fields without regulation. 

Another commenter stated that pressure 

washing and steam sanitation 

requirements for infested and associated 

fields are arbitrarily applied. The 

commenter stated that his organization 

has provided APHIS with evidence of 

arbitrary application, including failure 

of APHIS to require sanitation of nonfarm vehicles and equipment entering 

regulated fields. Finally, a commenter 

stated, without providing details, that 

APHIS has allowed trucks to travel 

unimpeded in infested fields and onto 

public roads without being washed or 

inspected, although harvesters could not 

do the same. 

We disagree with the commenters’ 

contention that APHIS applies 

sanitation requirements for infested and 

associated fields ineffectively and 

arbitrarily. Sanitation and limited 

permitting are required and enforced for 

all equipment and vehicles that exit a 

regulated field. We pursue all reports 

we receive of equipment moved in 

violation of the requirements and take 

action when there is enough evidence to 

warrant it. We use all records and other 

information available to us to establish 

regulated areas and to enforce sanitation 

requirements for all equipment and 

vehicles, while recognizing that farm 

equipment poses the greatest risk for 

spreading PCN, given its exposure to 

soil and frequent movement between 

fields. 

A commenter asked how many times 

a field can be re-associated with an 

infested field. 

There is no limit to the number of 

times a field can be re-associated. The 

regulatory status of a field for PCN is 

dependent on that field meeting any of 

the criteria for designation of fields as 

associated fields in § 301.86–3(c)(2). 

A commenter noted that a number of 

external environmental factors, 

including host plant root diffusates, soil 

temperature and moisture, soil oxygen, 

soil microorganisms, minerals, and 

organic substances can induce or 

influence cyst hatching, and asked why 

these options are not used in place of 

sanitizing equipment. 

We acknowledge that these factors 

can influence cyst hatching but note 

they are currently in the research phase 

and not ready to be tried on a 

production scale. Moreover, the factors 

listed are not actually sanitizing agents 

but more allied with pest eradication 

practices. While we always seek new 

approaches to controlling pests, 

sanitation is required to adequately 

address the risk of spreading PCN on 

equipment used in infested fields. 

One commenter expressed concerns 

about the difficulty of moving 

deregulated equipment between fields. 

The commenter noted an instance in 

which APHIS told a grower that it was 

a holiday and their grain combine 

would have to remain in the field for 3 

to 4 days before it could be washed and 

released. 

APHIS understands the impacts of the 

sanitation requirement on growers and 

works to minimize delays while still 

providing services at no cost to growers. 

We note that sanitation and inspection 

services have been made available to 

growers on Federal holidays since 2011. 

In 2012, we developed a selfcertification option with program 

oversight so growers could work 

autonomously. Stakeholders have the 

option of entering into a compliance 

agreement enabling them to meet 

washing, inspection, and certification 

requirements themselves. 

A commenter stated that pressure 

washing equipment on the edge of a 

regulated field creates muddy 

conditions, which actually enhances the 

movement of soil out of the field as the 

mud clings to the tires of the equipment. 

The commenter has provided no 

evidence that APHIS washes equipment 

in such a way that enhances movement 

of soil on equipment. We note that 

APHIS has broad experience with 

ensuring that vehicles and equipment 

that have been in PCN regulated fields 

are washed appropriately. 

Non-Compliance With Court Order 

According to one commenter, the 

proposed rule, economic analysis, and 

protocols violate the District Court’s 

order that APHIS may not rely upon the 

advice or recommendations of the 

Technical Working Group in any future 

actions, including this rulemaking. The 

commenter noted that in the Court’s 

2018 Memorandum Decision and Order 

in Mickelsen Farms v. APHIS, there are 

many instances of APHIS’ reliance on 

the recommendations and findings of 

the Technical Working Group in the 

development of the protocols. The 

commenter stated that the Technical 

Working Group recommended that farm 

implements used on any known infested 

field must be completely sanitized and 

noted that the deregulation protocols 

call for pressure washing and steam 

sanitation. The commenter also pointed 

out that the Technical Working Group 

recommended using stain viability 

assays on eggs, as does the infested field 

deregulation protocols. Finally, the 

commenter noted that the Technical 

Working Group recommended posteradication treatment monitoring using 

fixed grid patterns, and the infested 

field protocol also calls for fixed grid 

pattern field sampling. 

Although we disagree with the 

commenter’s contention that the 

deregulation protocols were developed 

based on the work of the Technical 

Working Group, we acknowledge that 

the March 2019 proposed rule could 

have provided the public with a more 


KHAMMOND on DSKJM1Z7X2PROD with RULES
85502 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 

8See footnote 1 for a link to the document. 

9Studies on this topic include: ‘‘Scientists: 

Unless PCN is eliminated, ‘there will be no Scottish 

potato sector left in 25 years’ time.’’ Potato News 

Today, August 9, 2019; otton, J. 2014, ‘‘The genome 

and life-stage specific transcriptomes of Globodera 

pallida: key aspects of plant parasitism by a cyst 

nematode.’’ Genome Biology 15: https://doi.org/ 

10.1186/gb-2014-15-3-r43; Greco, N. 1988, ‘‘Potato 

cyst nematodes: Globodera rostochiensis and G. 

pallida.’’ Nematology Circular 149, Florida 

Department of Agriculture and Consumer Services, 

Division of Plant Industry, Gainesville, FL, USA; 

Dale, M.F.B., 1988, ‘‘The assessment of the 

tolerance of partially resistant potato clones to 

damage by the potato cyst nematode Globodera 

pallida at different sites and in different years.’’ 

Annals of Applied Biology 113, pp. 79–88; and Mai, 

J. 1977, ‘‘Worldwide Distribution of Potato-Cyst 

Nematodes and Their Importance in Crop 

Production.’’ Journal of Nematology, 9:1, January 

1977. 

10See Koirala, S., Watson, P., McIntosh, C.S. et 

al. ‘‘Economic Impact of Globodera Pallida on the 

Idaho Economy.’’ American Journal of Potato 

Research. 97, 214–220 (2020). https://doi.org/ 

10.1007/s12230-020-09768-2. 

11See, for example, N.C. Banks, et al., ‘‘Dispersal 

of Potato Cyst Nematodes Measured Using 

Historical and Spatial Statistical Analyses.’’ 

Phytopathology 102(6):620–6, June 2012: https://

apsjournals.apsnet.org/doi/pdfplus/10.1094/ 

PHYTO-08-11-0224; and Lambert, K. and S. Bekal, 

‘‘Introduction to Plant-Parasitic Nematodes.’’ The 

Plant Health Instructor (2002, revised 2009). DOI: 

10.1094/PHI–I–2002–1218–01. 

detailed explanation to draw its own 

conclusions on this matter. For this 

reason, we reopened the comment 

period on the proposed rule a second 

time and provided in this June 2020 

reopening document 8 additional 

information about the science and 

sources we used to develop the 

protocols. We have responded to 

comments addressing that information 

in this final rule. 

Other Comments 

One commenter said that we provided 

no evidence to support our statement in 

the proposal that unmanaged PCN 

infestations can cause potato yield 

losses of between 20 and 70 percent, 

adding that no yield losses have ever 

been documented as a result of PCN in 

the State of Idaho. 

The percentage range we cited in the 

proposed rule collectively refers to 

potato yield losses from a few types of 

potato cyst nematodes, including PCN. 

Several studies from around the globe 

cite similar yield losses in countries 

where potato cyst nematodes have 

multiplied unchecked.9 We note that no 

losses in potato yields have been 

documented for PCN in Idaho as in 

other countries because the infestation 

was detected and addressed before the 

pest level could reach the threshold for 

significant crop yield loss. 

Several commenters suggested that 

APHIS should remove PCN from the 

U.S. and global quarantine lists. 

There are currently 85 countries in 

addition to the United States that 

regulate G. pallida and 127 other 

countries that also regulate G. 

rostochiensis. Each of these countries 

determines its own import requirements 

for commodities entering their country. 

We agree with the regulatory and 

scientific communities that find PCN is 

capable of threatening Idaho 10 and the 

global potato industry with costs 

associated with managing unrestricted 

PCN populations. 

Several commenters questioned the 

U.S. Department of Agriculture’s 

(USDA’s) ability to contain or eradicate 

PCN, citing instances in which viable 

nematodes have been dispersed broadly 

by wind, water, and animals. 

While we acknowledge that water, 

wind, or animals are possible 

mechanisms for spreading PCN, our 

experience as well as scientific studies 

indicate that human-assisted spread is 

the primary mechanism for spreading 

PCN between fields. Natural PCN 

movement within soil, in contrast, has 

been shown to be generally no greater 

than 1–2 meters annually.11 Although 

some infested fields in Idaho have been 

detected within close proximity to one 

another, all such fields to date have 

been shown to have a history of shared 

equipment or other human-assisted 

means of soil movement from another 

infested field. 

We note, moreover, that APHIS 

regulates associated fields on the basis 

of adjacency to infested fields for the 

purpose of detecting any PCN spread by 

natural means. Our survey data have not 

supported that PCN is spread in Idaho 

by wind, water, or animals. APHIS has 

collected over half a million soil 

samples outside of infested fields, many 

from fields adjacent to infested fields, 

with no detections of PCN. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, without change. 

Executive Orders 12866 and 13771 and 

Regulatory Flexibility Act 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. This rule is 

not an Executive Order 13771 regulatory 

action because this rule is not 

significant under Executive Order 

12866. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. The analysis is 

summarized below. Copies of the full 

analysis are available on the 

Regulations.gov website (see footnote 1 

in this document for a link to 

Regulations.gov) or by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

According to the Small Business 

Administration, entities whose main 

activity is potato farming (classified 

under NAICS 111211) are considered 

small if they have $750,000 or less in 

annual receipts. Based on the 2017 

Census of Agriculture, there were about 

25,000 farms in Idaho, of which around 

700 were considered to be primarily 

potato farms. Bingham and Bonneville 

Counties had 108 and 40 potato farms, 

respectively. There were about 1,800 

farms in Idaho with farm sales greater 

than $500,000, of which around 1,070 

farms had farm sales greater than $1 

million. According to the 2017 Census, 

108 of Bingham County’s 1,177 farm 

operations (about 9 percent) had farm 

sales greater than $500,000, while 

Bonneville County, 40 of the 1,109 farm 

operations (about 4 percent) had farm 

sales greater than $500,000. Although 

the distribution of potato farms with 

farm sales above $500,000 (or $750,000) 

is not known, it is reasonable to 

conclude that many of the potato farms 

in northern Bingham and southern 

Bonneville Counties are small business 

entities. 

However, the final rule would not 

impose new or additional burdens on 

small entities as this is an 

administrative action for which there 

would be no additional costs. 

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 2 CFR 

chapter IV.) 

Executive Order 12988 

This final 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. 


KHAMMOND on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Rules and Regulations 85503 

Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a major rule, 

as defined by 5 U.S.C. 804(2). 

Paperwork Reduction Act 

This final rule contains no reporting, 

recordkeeping, or third party disclosure 

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 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). 

■ 2. Section 301.86–3 is amended as 

follows: 

■ a. In paragraph (a), by removing 

‘‘http://www.aphis.usda.gov/plant_

health/plant_pest_info/potato/ 

pcn.shtml’’ and adding ‘‘https://

www.aphis.usda.gov/planthealth/pcn’’ 

in its place; and 

■ b. By revising paragraphs (c)(1) and 

(d). 

The revisions read as follows: 

§ 301.86–3 Quarantined areas. 

* * * * * 

(c) * * * 

(1) Infested fields. A field will be 

designated as an infested field for pale 

cyst nematode upon a determination 

that viable pale cyst nematode is present 

in the field. The determination will be 

made in accordance with the criteria 

established by the Administrator for the 

designation of infested fields. The 

criteria are presented in a protocol 

document that may be viewed at https:// 

www.aphis.usda.gov/planthealth/pcn. 

The protocol may also be obtained by 

request from any local office of Plant 

Protection and Quarantine; local offices 

are listed in telephone directories. Any 

substantive changes we propose to make 

to the protocol will be published for 

comment in the Federal Register. After 

we review the comments received, we 

will publish another notice in the 

Federal Register informing the public of 

any changes to the protocol. 

* * * * * 

(d) Removal of fields from quarantine. 

(1) Infested fields. An infested field will 

be removed from quarantine for pale 

cyst nematode upon a determination 

that no viable pale cyst nematode is 

detected in the field. The determination 

will be made in accordance with criteria 

established by the Administrator and 

sufficient to support removal of infested 

fields from quarantine. The criteria are 

presented in a protocol document as 

provided in paragraph (d)(4) of this 

section along with information for 

viewing the protocol. 

(2) Associated fields. An associated 

field will be removed from quarantine 

for pale cyst nematode once surveys are 

completed and pale cyst nematode is 

not detected in the field. The 

determination will be made in 

accordance with criteria established by 

the Administrator and sufficient to 

support removal of associated fields 

from quarantine. The criteria are 

presented in a protocol document as 

provided in paragraph (d)(4) of this 

section along with information for 

viewing the protocol. 

(3) Removal of other areas from 

quarantine. If the Administrator has 

quarantined any area other than infested 

or associated fields because of its 

inseparability for quarantine 

enforcement purposes from infested or 

associated fields, as provided in 

paragraph (a) of this section, that area 

will be removed from quarantine when 

the relevant infested or associated fields 

are removed from quarantine. 

(4) Protocol for removal of fields from 

quarantine. The Administrator will 

remove infested and associated fields, 

and other areas as provided in this 

section, from quarantine for pale cyst 

nematode in accordance with the 

protocols published on the Plant 

Protection and Quarantine website at 

https://www.aphis.usda.gov/ 

planthealth/pcn. The protocols may also 

be obtained by request from any local 

office of Plant Protection and 

Quarantine; local offices are listed in 

telephone directories. Any substantive 

changes we propose to make to the 

protocols will be published for 

comment in the Federal Register. After 

we review the comments received, we 

will publish another notice in the 

Federal Register informing the public of 

any changes to the protocols. 

Done in Washington, DC, this 1st day of 

December 2020. 

Michael Watson, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2020–26962 Filed 12–28–20; 8:45 am] 

BILLING CODE 3410–34–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

[NRC–2017–0151] 

RIN 3150–AK07 

Reactor Vessel Material Surveillance 

Program 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Direct final rule; confirmation of 

effective date. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is confirming the 

effective date of February 1, 2021, for 

the direct final rule that was published 

in the Federal Register on October 2, 

2020. The direct final rule amends the 

NRC’s reactor vessel material 

surveillance program requirements for 

commercial light-water reactors. The 

direct final rule revises the requirements 

associated with the testing of specimens 

contained within surveillance capsules 

and reporting the surveillance test 

results. The direct final rule also 

clarifies the requirements for the design 

of surveillance programs and the 

capsule withdrawal schedules for 

surveillance capsules in reactor vessels 

purchased after 1982. 

DATES: The effective date of February 1, 

2021, for the direct final rule published 

October 2, 2020 (85 FR 62199), is 

confirmed. 

ADDRESSES: Please refer to Docket ID 

NRC–2017–0151 when contacting the 

NRC about the availability of 

information for this action. You may 

obtain publicly-available information 

related to this action by any of the 

following methods: 

• Federal Rulemaking Website: Go to 

https://www.regulations.gov and search 

for Docket ID NRC–2017–0151. Address 

questions about NRC dockets to Dawn 

Forder; telephone: 301–415–3407; 

email: Dawn.Forder@nrc.gov. For 

technical questions, contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section of this 

document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publiclyVerDate Sep<11>2014 16:16 Dec 28, 2020 Jkt 253001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\29DER1.SGM 29DER1

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