This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

8921

Vol. 60, No. 32

Thursday, February 16, 1995

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 319

[Docket No. 94–042–2]

True Potato Seed From Chile

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are allowing, under

certain conditions, the importation of

true potato seed from Chile. The true

potato seed imported from Chile under

this rule will originate from certified

virus-free plantlets from the United

States, be produced under the

supervision of Chilean plant protection

authorities, and be tested for seedborne

viruses prior to being offered for entry

into the United States. Allowing the

importation of true potato seed from

Chile will give potato producers in the

United States another means of

producing disease-free tubers.

EFFECTIVE DATE: March 20, 1995.

FOR FURTHER INFORMATION CONTACT: Mr.

Peter M. Grosser or Mr. Frank E. Cooper,

Senior Operations Officers, Port

Operations, Plant Protection and

Quarantine, APHIS, USDA, P.O. Drawer

810, Riverdale, MD 20738. The

telephone number for the agency

contact will change when agency offices

in Hyattsville, MD, move to Riverdale,

MD, during February. Telephone: (301)

436–6799 (Hyattsville); (301) 734–6799

(Riverdale).

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319

prohibit or restrict the importation into

the United States of certain plants and

plant products to prevent the

introduction of plant pests. The

regulations contained in ‘‘Subpart—

Nursery Stock, Plants, Roots, Bulbs,

Seeds, and Other Plant Products,’’

§§ 319.37 through 319.37–14 (referred to

below as the regulations), restrict,

among other things, the importation of

living plants, plant parts, and seeds for

propagation.

One of the articles restricted in the

regulations is Solanum species (spp.)

true seed, also known as true potato

seed. ‘‘Solanum spp. true seed’’ is

defined in § 319.37–1 as ‘‘seed produced

by flowers of Solanum capable of

germinating and producing new

Solanum plants, as distinguished from

Solanum tubers, whole or cut, that are

referred to as Solanum seeds or seed

potatoes.’’

On September 9, 1994, we published

in the Federal Register (59 FR 46572–

46574, Docket No. 94–042–1) a

proposed rule to allow, under certain

conditions, the importation of true

potato seed from Chile. We proposed

that the true potato seed imported from

Chile would have to originate from

certified virus-free plantlets from the

United States, be produced in the

country’s Tenth (X) Region under the

supervision of Chilean plant protection

authorities, and be tested for seedborne

viruses prior to being offered for entry

into the United States.

We solicited comments concerning

our proposal for a 30-day comment

period ending October 11, 1994. We

received 31 comments by that date, from

State universities and university

extension services; plant researchers

and geneticists; potato breeders,

growers, and marketers; State

agriculture departments; seed

companies; an agronomist; a member of

the U.S. House of Representatives; and

the Chilean government trade bureau.

Twenty one of the commenters

supported the proposed rule as written,

8 commenters supported the proposed

rule but suggested changes, and 2

commenters were opposed to the

proposed rule. The suggested changes

and the comments of those opposed to

the proposal are discussed below.

Comment: Although the disease is

already present in the United States, the

regulations should include safeguards to

prevent the introduction of potato

spindle tuber viroid (PSTV), which is

transmitted by true potato seed.

Response: As discussed in the

proposed rule, the plants that would

produce the true potato seed would

originate from plantlets from the United

States that have been tested for viruses

(including PSTV) and certified virusfree. Additionally, PSTV is not known

to exist in the X Region, and, because

the X Region is a quarantined area for

potatoes, the entry of potato seeds, true

seed, plants, and tubers is restricted in

order to prevent the introduction of

PSTV and other potato pests or diseases.

Therefore, we believe that it is unlikely

that the true potato seed would

introduce PSTV into the United States

and have made no changes in this final

rule as a result of that comment.

Comment: The growing season

inspection discussed in the proposed

rule should be conducted within six

weeks of harvest to maximize the ability

to detect infected plant material.

Surveys conducted earlier in the

growing season might not detect

infected plants.

Response: Diseases with visible

symptoms would likely be more easily

recognized later in the growing season,

but the viruses for which the plants,

tubers, and true potato seed will be

tested may be asymptomatic in potatoes.

The testing protocol presented by

Chile’s ministry of agriculture, the

Servicio Agricola y Ganadero (SAG),

and accepted by the Animal and Plant

Health Inspection Service (APHIS) calls

for plant samples to be collected for

testing between 30 days after planting

up to the flowering phase. APHIS agrees

with that time frame because we believe

that the most accurate testing results

would be obtained from samples

gathered during the active phase of the

plants’ growth. We have, therefore,

made no changes in this final rule as a

result of that comment.

Comment: Our literature indicates

that potato smut occurs in parts of

Chile. If that disease is present in the X

Region, it could be carried with the true

potato seed as a contaminant.

Response: Potato smut is not reported

to occur in the X Region and, as

mentioned above, there are quarantine

measures in place to prevent its

introduction into the region. Because we

believe that it is unlikely that potato

smut would be carried into the United

States as a contaminant on the true

potato seed from Chile, we have made

no changes in this final rule based on

that comment.
8922 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations

Comment: For the sake of clarity,

APHIS should specify ‘‘Solanum

tuberosum,’’ rather than the more

general ‘‘Solanum spp.,’’ when referring

to the potato species from which the

true potato seed may be derived.

Response: We agree that using

‘‘Solanum tuberosum’’ instead of the

more general ‘‘Solanum spp.’’ would be

clearer. We have, therefore, changed the

regulatory text of this final rule to refer

to the potato species from which the

true potato seed may be derived as

‘‘Solanum tuberosum.’’

Comment: Specifically requiring that

the nitro-cellulose membrane (NCM)

enzyme-linked immunosorbent assay

(ELISA) be used to test for the viruses

of concern leaves no room for the use

of other tests that are also recommended

by the International Potato Center. Other

ELISA tests, as well as the nucleic acid

spot hybridization (NASH) non-reagent

test, should be allowed.

Response: In the testing protocol

presented by SAG and accepted by

APHIS, the NCM ELISA test was

specified as the method that would be

used to test for the viruses of concern.

We recognize, however, that the other

tests recommended by the International

Potato Center are equally accurate and

could be used to test for the viruses of

concern without compromising the

integrity of the testing program in any

way. Therefore, we have changed the

regulatory text of this final rule to allow

the use of other ELISA tests and the

NASH non-reagent test for the purposes

of testing the tubers, plants, and true

potato seed for the viruses of concern.

Comment: With regard to the sample

sizes specified in proposed paragraph

§ 319.37–5(h)(iii), the sampling rate

should be 500 tubers and 500 plantlets

per hectare (2.5 acres) rather than per 30

acres in order to detect 1 percent

contamination with a 99 percent

confidence level. The sampling level for

the true potato seed should be made

according to International Potato

Center’s guidelines for laboratory tests.

Response: The 500/500/500 sampling

rate discussed in the proposed rule for

the testing of plants, tubers, and true

potato seed actually should, as pointed

out by the commenter, be 500/500/500

per hectare, and not per 30-acre field as

stated in the proposed rule. We have

changed the regulatory text in this final

rule to correct that error. With regard to

the sampling to the true potato seed, the

testing protocol presented by SAG and

accepted by APHIS dictated that the

true potato seed would be sampled at

the same rate as the plants and tubers

in order to detect 1 percent

contamination with a 99 percent

confidence level. It is the contamination

level/confidence level equation that is

of the greatest importance to APHIS; if

SAG would prefer to establish a

different sampling procedure for true

potato seed that could detect the same

level of contamination with the same

level of confidence, APHIS is willing to

review the new sampling procedure

and, if warranted, publish a proposal in

the Federal Register to add the

procedure to the regulations.

Comment: APHIS should recognize

Chile’s VIII and IX regions as also being

free from the four viruses of concern

and allow the importation of true potato

seed from those regions as well. Once

such recognition has been established,

APHIS should allow the use of parental

material from those regions to produce

the true potato seed and eliminate the

requirement for the pre-export

inspection and testing of true potato

seed from the VIII, IX, and X regions of

Chile.

Response: APHIS is open to working

with SAG to expand the range of areas

in Chile from which true potato seed

may be imported into the United States;

similarly, we are open to relaxing or

eliminating inspection or testing

requirements as circumstances warrant.

However, we must first be able to

establish that such actions would not

result in an increased risk of plant pest

introduction or dissemination in the

United States. Once adequate protocols

had been established and agreed upon,

we could publish a proposal in the

Federal Register to add any new areas

or inspection requirements to the

regulations. We cannot, however, make

any such changes in this final rule.

Comment: The proposed requirement

to test at three levels (plantlet, tuber,

and true potato seed) for Andean Potato

Latent Virus (APLV), Arracacha Virus B

(AVB), and the Andean Potato Calico

Strain of Tobacco Ringspot Virus (TRVCa) is unnecessarily stringent because

there is no evidence to confirm that any

of the three viruses can be transmitted

by true potato seed under natural

conditions. Additionally, the

International Potato Center has analyzed

true potato seed from the Peruvian

Andean area—where AVB and TRV-Ca

have been found to exist—and from the

Center’s own germplasm stock for a

continued term of 8 years and has never

found any of the three viruses in the

true potato seed tested.

Response: The testing protocol

presented by SAG and accepted by

APHIS prescribed that plants, tubers,

and true potato seed would all be tested

for the viruses of concern. If alternative

testing protocols are presented by SAG,

and APHIS determines that they would

not result in an increased risk of plant

pest introduction or dissemination in

the United States, we could publish a

proposal in the Federal Register to relax

or replace the requirement to test all

three levels (plants, tubers, and true

potato seed) for all viruses of concern.

Comment: The proposed criteria of

sampling to detect 1 percent

contamination at a 99 percent

confidence level is not adequate for

quarantine purposes. Zero tolerance is

the desired goal of quarantine, and

anything less creates an unacceptable

level of risk that is not in the best

interest of the potato industry. Under

ideal conditions, most quarantines only

delay the spread of regulated pests. The

potato industry does not need to face

the threat of diseases not currently in

the United States.

Response: If ‘‘zero tolerance’’ for pest

risk was the standard applied to

international trade in agricultural

commodities, it is quite likely that no

country would ever be able to export a

commodity to any other country. There

will always be some degree of pest risk

associated with the movement of

agricultural products; APHIS’ goal is to

reduce that risk to an insignificant level.

In the case of true potato seed from

Chile, we believe factors such as the low

incidence of disease transmission by

seeds and the absence of potato viruses

in the seed production area, as well as

the origin, certification, and testing

requirements contained in this final

rule, reduce the pest risk associated

with its importation to an acceptable

level.

Comment: The proposed rule contains

a requirement for SAG to provide

certain phytosanitary certifications.

Before further consideration is given to

the proposal, a formal review of the

SAG’s phytosanitary certification

program should be conducted by U.S.

officials to determine whether SAG can

in fact provide reliable and credible

certification.

Response: APHIS has a longstanding

working relationship with SAG, and we

are fully confident in their ability to

provide reliable and credible

phytosanitary certification for Chile’s

agriculture products, including true

potato seed.

Comment: Potato producers in the

United States do not need another

means of producing disease-free tubers,

especially if that means would not

provide a genetically pure potato

variety. True potato seed is already

produced in the United States and is

available to domestic potato research

personnel and the seed potato industry.

If there is a need for additional true

potato seed, it could be produced in the

United States.
Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations 8923

Response: Whether the domestic

potato industry will buy and use the

true potato seed imported from Chile

will be the decision of the domestic

potato industry. APHIS is concerned

with plant pest risk; marketing risks

would be the concern of the true potato

seed’s producers, exporters, and

importers.

Comment: The economic well-being

of pre-nuclear seed potato producers

and their associated industries may be

jeopardized by allowing cheaper foreign

material to enter the market.

Response: As discussed in the

Regulatory Flexibility analysis in the

proposed rule and in this final rule, we

expect that it will take several years

before true potato seed imported into

the United States from Chile and its

products will be in a position to capture

any significant market share. Thus, its

potential impact on price and

competition in the potato seed market

remains uncertain. If consumer response

is favorable and true potato seed

imported from Chile becomes

competitive with the seed potatoes

currently available in the United States,

the price of seed potatoes may be driven

down. However, because U.S. seed

potato prices are influenced more by

domestic production and market

conditions than by imports, it is likely

that any economic impact on domestic

seed potato producers will be small.

Addition of New Virus

In addition to the comments

discussed above, a representative of the

Food Production and Inspection Branch

of Agriculture and Agri-Food Canada

informed APHIS of recent research that

indicated the presence of Potato

Yellowing Virus (PYV) in Chile.

Because PYV can be transmitted

through true potato seed, SAG informed

APHIS that it will include PYV testing

in its pre-export virus testing. Therefore,

we have added PYV as a virus of

concern in the listings for Solanum spp.

and Solanum spp. true seed in § 319.37–

2(a), and we have added PYV to the list

in § 319.37–5(o)(3) of viruses for which

the samples of Solanum tuberosum

tubers, plants, and true seed must be

tested.

Miscellaneous

In addition to those changes

discussed above, we have also made two

nonsubstantive changes to the

paragraph designations in § 319.37–5.

First, the regulatory text that we had

proposed to add to the section as

paragraph § 319.37–5(h) are added in

this final rule as paragraph § 319.37–

5(o). Second, the subordinate

paragraphs in that same paragraph were

incorrectly designated in the proposed

rule as (i), (ii), and (iii); they are now

correctly designated as (1), (2), and (3).

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final rule

with the changes discussed above.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The 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 will allow, under certain

conditions, the importation of true

potato seed from Chile. True potato seed

imported from Chile under this rule will

originate from certified virus-free

plantlets from the United States, will be

grown under the supervision of Chilean

plant protection authorities, and a

sample of the plants, tubers, and true

potato seeds will be tested for seedborne

viruses prior to the true potato seed

being offered for entry into the United

States. Allowing the importation of true

potato seed from Chile will give potato

producers in the United States another

means of producing disease-free tubers.

The United States produced

approximately 2,880 million pounds of

seed potatoes in 1992 (U.S. Department

of Agriculture [USDA], Economic

Research Service). During that same

period, the United States imported

approximately 128 million pounds of

seed potatoes, which represents about

4.4 percent of U.S. production. Because

imports represent such a small portion

of the domestic seed potato supply,

fluctuations in import levels and prices

do not appear to have a significant effect

on domestic seed potato prices.

For example, U.S. imports of seed

potatoes declined by more than a third

between 1990 and 1992, dropping from

201 million pounds in 1990 to 128

million pounds in 1992. This decline in

imports did not, however, result in an

increase in U.S. grower or retail prices

for seed potatoes. In fact, the price of

imported seed potatoes also fell by more

than a third during that time, dropping

from $11 per 100 pounds in 1990 to $7

per 100 pounds in 1992 (USDA,

‘‘Agricultural Statistics 1992,’’ Table

371, page 239). Based on the decline in

both import levels and price during the

same 2-year period, it appears that

domestic seed potato prices are

influenced more by the volume of U.S.

production.

The import levels and prices

discussed above do not reflect any

imports of true potato seed from

anywhere in the world, nor is there any

record of true potato seed being

imported into the United States. Our

records indicate that true potato seed is

a product that has not been

commercially available in the United

States. We expect that it will take

several years before true potato seed

imported into the United States from

Chile and its products will be in a

position to capture any significant

market share. Thus, its potential impact

on price and competition in the potato

seed market remains uncertain.

We have identified domestic seed

potato producers and seed potato

importers as the entities potentially

affected by this rule. According to the

Small Business Administration’s

criteria, an agricultural producer with

annual sales of less than $500,000 is

considered to be a small entity; an

importer is considered to be a small

entity if it employs fewer than 100

people. According to the U.S.

Department of Commerce’s ‘‘1987

Census of Agriculture,’’ there were

about 14,732 farms that produced

potatoes in the United States, and about

96 percent of those farms reported sales

of less than $100,000. The exact

percentage of those farms that produced

only seed potatoes or a combination of

seed potatoes and table potatoes is not

known, but it is likely that the number

is small, based on the total production

of seed potatoes versus table potatoes

(2,880 million pounds vs. 42,500

million pounds, respectively).

Information regarding the total

number of seed potato importers and the

percentage of those importers that

would be considered small entities was

unavailable. It is unlikely, however, that

allowing the importation of true potato

seed from Chile will have a significant

impact on seed potato import levels.

The true potato seed imported from

Chile may be used by potato producers

in the United States to produce potatoes

of a different variety than those potatoes

currently grown in the United States;

the economic impact of the imported

true potato seed will thus be affected by

consumer response to the new variety of

potatoes. If consumer response is

favorable and true potato seed imported

from Chile becomes competitive with

the seed potatoes currently available in

the United States, the price of seed

potatoes may be driven down. However,

because U.S. seed potato prices are

influenced more by domestic

production and market conditions than

by imports, it is likely that any

economic impact on domestic seed

potato producers will be small. Any

slight negative impact will likely be

offset by the positive impact on
8924 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations

domestic potato producers, who will

benefit from lower seed potato prices,

and consumers will benefit from any

resulting lower prices.

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 12778

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This rule will allow true seed

of Solanum spp. to be imported into the

United States from Chile. State and local

laws and regulations regarding true seed

imported under this rule will be

preempted while the true seed is in

foreign commerce. Seeds are generally

imported for immediate distribution and

sale to the public, and remain in foreign

commerce until sold to the ultimate

consumer. The question of when foreign

commerce ceases in other cases must be

addressed on a case-by-case basis. This

rule has no retroactive effect and does

not require administrative proceedings

before parties may file suit in court.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.), the information collection or

recordkeeping requirements included in

this rule have been approved by the

Office of Management and Budget

(OMB), and there are no new

requirements. The assigned OMB

control number is 0579–0049.

List of Subjects in 7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey,

Imports, Incorporation by reference,

Nursery stock, Plant diseases and pests,

Quarantine, Reporting and

recordkeeping requirements, Rice,

Vegetables.

Accordingly, 7 CFR part 319 is

amended as follows:

PART 319—FOREIGN QUARANTINE

NOTICES

1. The authority citation for part 319

continues to read as follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff,

151–167, and 450; 21 U.S.C. 136 and 136a;

7 CFR 2.17, 2.51, and 371.2(c).

§ 319.37–2 [Amended]

2. In § 319.37–2(a), in the table, the

listing for Solanum spp. is amended in

the third column by adding the words

‘‘; Arracacha Virus B; Potato Yellowing

Virus’’ at the end of the entry,

immediately before the period.

3. In § 319.37–2(a), in the table, the

listing for Solanum spp. true seed is

amended in the second column by

removing the words ‘‘Canada and New

Zealand’’ and adding the words

‘‘Canada, New Zealand, and the X

Region of Chile (that area of Chile

between 39° and 44° South latitude—see

§ 319.37–5(o))’’ in their place, and in the

third column by adding the words ‘‘,

Arracacha Virus B, Potato Yellowing

Virus’’ at the end of the entry,

immediately before the period.

4. In § 319.37–3, paragraph (a)(3) is

amended by removing the words ‘‘true

seed of Solanum spp. (tuber bearing

species only—Section Tuberarium) from

New Zealand;’’, and a new paragraph

(a)(17) is added to read as set forth

below:

§ 319.37–3 Permits.

(a) * * *

(17) Solanum tuberosum true seed

from New Zealand and the X Region of

Chile (that area of Chile between 39°

and 44° South latitude—see § 319.37–

5(o)).

* * * * *

5. In § 319.37–5, a new paragraph (o)

is added to read as follows:

§ 319.37–5 Special foreign inspection and

certification requirements.

* * * * *

(o) Any Solanum tuberosum true seed

imported from Chile shall, at the time of

arrival at the port of first arrival in the

United States, be accompanied by a

phytosanitary certificate of inspection

issued in Chile by the Servicio Agricola

y Ganadero (SAG), containing

additional declarations that:

(1) The Solanum spp. true seed was

produced by Solanum plants that were

propagated from plantlets from the

United States;

(2) The Solanum plants that produced

the Solanum tuberosum true seed were

grown in the Tenth (X) Region of Chile

(that area of the country between 39°

and 44° South latitude); and

(3) Solanum tuberosum tubers, plants,

and true seed from each field in which

the Solanum plants that produced the

Solanum tuberosum true seed were

grown have been sampled by SAG once

per growing season at a rate to detect 1

percent contamination with a 99 percent

confidence level (500 tubers/500 plants/

500 true seeds per 1 hectare/2.5 acres),

and that the samples have been

analyzed by SAG using an enzymelinked immunosorbent assay (ELISA)

test or nucleic acid spot hybridization

(NASH) non-reagent test, with negative

results, for Andean Potato Latent Virus,

Arracacha Virus B, Potato Virus T, the

Andean Potato Calico Strain of Tobacco

Ringspot Virus, and Potato Yellowing

Virus.

(Approved by the Office of Management and

Budget under control number 0579–0049)

Done in Washington, DC, this 9th day of

February 1995.

Lonnie J. King,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 95–3843 Filed 2–15–95; 8:45 am]

BILLING CODE 3410–34–P

Agricultural Marketing Service

7 CFR Parts 905 and 944

[Docket No. FV94–905–4–FIR]

Oranges, Grapefruit, Tangerines, and

Tangelos Grown in Florida and

Imported Grapefruit; Relaxation of the

Minimum Size Requirement for Red

Seedless Grapefruit

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Department of

Agriculture (Department) is adopting as

a final rule, without change, the

provisions of an interim final rule

which relaxed the minimum size

requirement for domestic shipments of

Florida red seedless grapefruit and for

red seedless grapefruit imported into the

United States to 35⁄16 inches in diameter

(size 56) through November 12, 1995.

This rule enables handlers in Florida

and importers to continue to ship size

56 red seedless grapefruit for the entire

1994–95 season.

EFFECTIVE DATE: March 20, 1995.

FOR FURTHER INFORMATION CONTACT:

William G. Pimental, Southeast

Marketing Field Office, USDA/AMS,

P.O. Box 2276, Winter Haven, Florida

33883; telephone: 813–299–4770; or

Mark Kreaggor, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, P.O.

Box 96456, Room 2523–S, Washington,

DC 20090–6456; telephone: 202–720–

2431.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing Order

No. 905 [7 CFR Part 905], as amended,

regulating the handling of oranges,

grapefruit, tangerines, and tangelos

grown in Florida, hereinafter referred to

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

under the Agricultural Marketing

Agreement Act of 1937, as amended [7

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

as the Act.

This rule is also issued under section

8e of the Act, which provides that

whenever specified commodities,

including grapefruit, are regulated

under a Federal marketing order,