[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:
    <bullet> 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;
    <bullet> PCN has not been found in the field; and
    <bullet> 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:
    <bullet> 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
    <bullet> 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
                                                               ---------------------------------------------------------------------------------------------------------------------------------
                                                                             Table stock   Processing               Table stock   Processing    All uses
                                                               ---------------------------------------------------------------------------------------------------------------------------------
                                                                 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
                                                              ------------------------------------------------------------------------------------------
                                                                 Exports      Exports     Percentage    Exports     Percentage    Exports     Percentage
                                                                 ($1,000)     ($1,000)     of total     ($1,000)     of total     ($1,000)     of total
--------------------------------------------------------------------------------------------------------------------------------------------------------
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