Potato Cyst Nematode; Quarantine and Regulations, 51975-51988 [E7-17842]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 72, Number 176 (Wednesday, September 12, 2007)]
[Rules and Regulations]
[Pages 51975-51988]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17842]



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Federal Register / Vol. 72, No. 176 / Wednesday, September 12, 2007 / 
Rules and Regulations

[[Page 51975]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 301 and 305

[Docket No. APHIS-2006-0143]
RIN 0579-AC54


Potato Cyst Nematode; Quarantine and Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are 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. This action is necessary on an 
emergency basis to prevent the spread of the potato cyst nematode to 
noninfested areas of the United States.

DATES: This interim rule is effective on November 1, 2007. We will 
consider all comments that we receive on or before November 13, 2007.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov, select ``Animal and Plant Health Inspection 
Service'' from the agency drop-down menu, then click ``Submit.'' In the 
Docket ID column, select APHIS-2006-0143 to submit or view public 
comments and to view supporting and related materials available 
electronically. Information on using Regulations.gov, including 
instructions for accessing documents, submitting comments, and viewing 
the docket after the close of the comment period, is available through 
the site's ``User Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2006-0143, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2006-0143.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at https://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Osama El-Lissy, Director, Invasive 
Species and Pest Management, PPQ, APHIS, 4700 River Road, Unit 134, 
Riverdale, MD 20737-1236; (301) 734-8676.

SUPPLEMENTARY INFORMATION:

Background

    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart, ``Potato Cyst Nematode'' (Sec. Sec.  
301.86 through 301.86-9, referred to below as the regulations). The 
regulations quarantine parts of Bingham and Bonneville Counties, ID, 
due to the discovery of the potato cyst nematode there and restrict the 
interstate movement of regulated articles from the quarantined area.
    The potato cyst nematode (PCN) (Globodera pallida) is a major pest 
of potato crops in cool-temperature areas. Other solanaceous hosts 
include tomatoes, eggplants, peppers, tomatillos, and some weeds. The 
PCN is thought to have originated in Peru and is now widely distributed 
in many potato-growing regions of the world. PCN infestations may be 
expressed as patches of poor growth. Affected potato plants may exhibit 
yellowing, wilting, or death of foliage. Even with only minor symptoms 
on the foliage, potato tuber size can be affected. Unmanaged 
infestations can cause potato yield loss ranging from 20 to 70 percent. 
The spread of this pest in the United States could result in a loss of 
domestic or foreign markets for U.S. potatoes and other commodities.
    PCN is a soil-borne pest and is typically spread by the movement of 
infested soil, either soil itself or soil adhering to plants, farm 
equipment, or other articles. In some cases, PCN may be transported by 
wind and flood water.
    In the absence of host plants on which to feed, PCN survives in 
soil as cysts. Mature brown cysts are the desiccated bodies of female 
nematodes, which contain eggs bearing juvenile nematodes. Each cyst may 
contain as many as 500 eggs. These durable cysts protect the eggs from 
physical damage, making it possible for the eggs to survive periods 
when host plants are not present. When host crops are present, PCN eggs 
are stimulated to hatch in the spring by chemicals exuded from the 
roots of the host crops. Once hatched, the juvenile nematode moves 
between soil particles and locates and invades host plant roots. The 
larvae will undergo three additional larval stages; the third and 
fourth stages occur inside the plant root. Once the larvae have entered 
the host plant root (usually at or near the growing point), they become 
sedentary. The females eventually become ``sac-like,'' with their 
posteriors protruding from the root, and can be seen as tiny white 
embedded objects along the host plant's roots. When the females die, 
their body walls gradually harden and darken to form the cysts.
    When the nematode eggs are in the cysts, they are able to withstand 
chemical treatment. Since the cysts can survive in the absence of host 
plants for up to 30 years under ideal conditions, eradication of PCN 
has typically required long-term efforts. However, fumigants have been 
found to be effective at significantly reducing nematode cyst 
population levels in the absence of host plants, and repeated 
fumigations over a period of years can be used as an eradication tool.
    On April 13, 2006, nematode cysts from a sample of soil from a 
potato grading station in Idaho were confirmed to be PCN. Extensive 
traceback activities have determined that at least seven fields located 
in Bingham and Bonneville Counties, ID, are infested. Cysts recovered 
from a field were officially confirmed to be PCN by the

[[Page 51976]]

Animal and Plant Health Inspection Service's (APHIS) Plant Protection 
and Quarantine (PPQ) program on June 12, 2006. This is the first 
detection of PCN in the United States.
    APHIS and the Idaho State Department of Agriculture are conducting 
ongoing detection and delimiting surveys of all fields adjacent to or 
otherwise potentially infested with PCN. A robust survey of fields 
where potatoes have been grown is currently taking place throughout the 
State of Idaho. Idaho has restricted the intrastate movement of certain 
articles from the infested area to prevent the spread of PCN within 
Idaho. However, Federal regulations are necessary to restrict the 
interstate movement of certain articles from the infested area to 
prevent the spread of PCN to noninfested areas of the United States. 
This interim rule establishes those Federal regulations, which are 
described below.

Restrictions on Interstate Movement of Regulated Articles (Sec.  
301.86)

    Section 301.86 prohibits the interstate movement of regulated 
articles from quarantined areas except in accordance with the 
regulations.

Definitions (Sec.  301.86-1)

    Section 301.86-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, associated 
field, certificate, compliance agreement, departmental permit, field, 
infestation (infested), infested field, inspector, interstate, limited 
permit, moved (move, movement), nursery stock, person, Plant Protection 
and Quarantine, potato cyst nematode, quarantined area, regulated 
article, and State.

Regulated Articles (Sec.  301.86-2)

    Certain articles present a risk of spreading PCN if they are moved 
from quarantined areas without restrictions. We call these articles 
regulated articles. Paragraphs (a) through (h) of Sec.  301.86-2 list 
the following as regulated articles:
     Potato cyst nematodes;
     PCN host crops: Potato, eggplant, pepper, tomatillos, and 
tomato;
     Root crops;
     Garden and dry beans and peas;
     All nursery stock;
     Soil, compost, humus, muck, peat, and manure, and products 
on or in which soil is commonly found, including grass sod and plant 
litter;
     Hay, straw, and fodder;
     Any equipment or conveyance used in an infested or 
associated field that could carry soil if moved out of the field; and
     Any other product, article, or means of conveyance that an 
inspector determines presents a risk of spreading the potato cyst 
nematode, after the inspector provides written notification to the 
person in possession of the product, article, or means of conveyance 
that it is subject to the restrictions of the regulations.
    The last item listed above, which provides for the designation of 
``any other product, article, or means of conveyance'' as a regulated 
article, is intended to address the risks presented by, for example, a 
truck with caked soil that could have come from an infested field; 
under this provision, an inspector would be able to designate that 
truck as a regulated article. This will allow an inspector to ensure 
that any measures necessary to mitigate the risk of spreading PCN are 
carried out.

Quarantined Areas (Sec.  301.86-3)

    Paragraph (a) of Sec.  301.86-3 describes the process by which the 
quarantined area for PCN is designated. Under this process, the 
Administrator will designate as a quarantined area each field that has 
been found to be infested with PCN, each field that has been found to 
be associated with an infested field, and any area that the 
Administrator considers necessary to quarantine because of its 
inseparability for quarantine enforcement purposes from infested or 
associated fields.
    In the past, we have published the description of the quarantined 
area for our domestic quarantines in the regulations for those 
quarantines. For the potato cyst nematode, we will instead publish the 
description of the quarantined area on the PPQ Web site at https://
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. The description of the quarantined 
area may also be obtained by request from any local office of PPQ; 
local offices are listed in telephone directories. After a change is 
made to the quarantined area, we will publish a notice in the Federal 
Register informing the public that the change has occurred and 
describing the change to the quarantined area.
    Instead of including the description of the quarantined area in the 
regulations, the regulations set out a description of the criteria 
APHIS will use to designate a field as infested with PCN (an infested 
field) or as a field associated with an infested field (an associated 
field). These criteria are found in paragraph (c) of Sec.  301.86-3. 
The regulations also state the conditions under which infested and 
associated fields will be removed from quarantine in paragraph (d) of 
Sec.  301.86-3. Because we will not be publishing the description of 
the quarantined area in the regulations, we will be able to update it 
more quickly if an infestation of PCN is detected, thus allowing us to 
take prompt action to prevent the spread of PCN and providing necessary 
information to affected parties in a more timely manner. We believe our 
description of the criteria by which infested and associated fields 
will be designated and how the quarantined area will be determined will 
provide adequate notice regarding the criteria by which we will make 
changes to the quarantined area. We invite public comment on this 
approach to providing the public with a description of the quarantined 
area.
    Paragraph (b) describes the conditions for the designation of an 
area less than an entire State as a quarantined area. Less than an 
entire State will be designated as a quarantined area only if the 
Administrator determines that:
     The State has adopted and is enforcing restrictions on the 
intrastate movement of the regulated articles that are equivalent to 
those imposed by the regulations on the interstate movement of 
regulated articles; and
     The designation of less than the entire State as a 
quarantined area will prevent the interstate spread of PCN.
    We have determined that it is not necessary to designate the entire 
State of Idaho as a quarantined area. PCN has not been found in any 
area of the State other than portions of Bingham and Bonneville 
Counties, and Idaho has adopted and is enforcing restrictions on the 
intrastate movement of regulated articles from that area that are 
equivalent to those we are imposing on the interstate movement of 
regulated articles. Therefore, in accordance with the criteria 
described in the paragraphs (a) through (c) of Sec.  301.86-3, we have 
designated the following area as a quarantined area:
    Idaho. That part of Township 1 North, Range 37 East of the Boise 
Meridian that lies east and south of the Snake River, and sections 10 
through 36 of Township 1 North, Range 37 East.
    As mentioned earlier, paragraph (c) of Sec.  301.86-3 sets out the 
criteria for designating a field as an infested or associated field. 
Paragraph (c)(1) states that the Administrator will designate a field 
as an infested field when PCN is found in the field. PCN is difficult 
to detect with the naked eye. It is typically found through surveys, 
soil sampling, and microscopic inspection.
    Paragraph (c)(2) states that the Administrator will designate a 
field as

[[Page 51977]]

an associated field when PCN host crops, as listed in Sec.  301.86-
2(b), have been grown in the field in the last 10 years and:
     The field shares a border with an infested field; or
     The field came into contact with a regulated article from 
an infested field within the last 10 years; or
     Within the last 10 years, the field shared ownership, 
tenancy, seed, drainage or runoff, farm machinery, or other elements of 
shared cultural practices with an infested field that could allow 
spread of PCN, as determined by the Administrator.
    Fields will only be designated as associated fields under the last 
criterion above if the Administrator determines that one of the 
circumstances listed means that PCN could have been spread from an 
infested field to the associated field. If an infested field and a 
noninfested field share cultural practices, but the Administrator 
determines that the specific cultural practice that is shared does not 
pose a risk of spreading PCN, the noninfested field would not be 
designated as an associated field.
    It should be noted that, because soil is a regulated article under 
Sec.  301.86-2(f), the unauthorized movement of soil from an infested 
field to another field will cause that field to be designated as an 
associated field.
    Paragraph (d) of Sec.  301.86-3 described the conditions under 
which fields will be removed from quarantine. Under paragraph (d)(1), 
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.
    The biosurvey protocol involves planting PCN host crops in soil 
from a field and sampling the soil for PCN. This process must be 
repeated three times, over three crop cycles, with negative results in 
order for APHIS to declare the field to be free of PCN and thus to 
remove the quarantine from an infested field. We are confident that 
such a process will be sufficient to establish freedom from 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; as noted earlier, PCN 
can survive for up to 30 years in a dormant state without any host 
crops to feed on. PPQ is also developing a plan for eradicating PCN in 
infested fields. A draft of the eradication plan has guided our initial 
eradication efforts. We will use the data we gather from these efforts 
to further refine the eradication plan. When the plan is finalized, we 
will make it available to the public. Regardless of the eradication 
means used to ensure that a field is free from PCN, however, we would 
require the 3-year bioassay protocol to confirm that freedom.
    Under paragraph (d)(2), 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. The survey protocol to designate an 
associated field as free of PCN is more thorough than the sampling 
process by which APHIS determines that PCN is not known to occur in a 
field, although not as intensive as the biosurvey protocol for infested 
fields. The additional steps required by the survey protocol to 
determine freedom are appropriate prior to releasing a field from 
quarantine entirely.
    Paragraph (d)(3) states that if the Administrator has quarantined 
any area other than infested, adjacent, 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.

Conditions Governing the Interstate Movement of Regulated Articles From 
Quarantined Areas (Sec.  301.86-4)

    This section requires most regulated articles moving interstate 
from quarantined areas to be accompanied by a certificate or a limited 
permit. The articles must be moved in accordance with Sec. Sec.  
301.86-5 and 301.86-8 and under any additional conditions issued by the 
Administrator to prevent the spread of PCN. The U.S. Department of 
Agriculture (USDA or the Department) may move regulated articles 
interstate without a certificate or limited permit if the articles are 
moved for experimental or scientific purposes.
    Except for articles moved by APHIS or the Department, only a 
regulated article that is moved into the quarantined area from outside 
the quarantined area and that is accompanied by a waybill that 
indicates the point of origin may be moved interstate from the 
quarantined area without a certificate or limited permit. The article 
may not have been combined or commingled with other articles so as to 
lose its individual identity. Additionally, the article must be moved 
through the quarantined area without stopping (except for refueling and 
for traffic conditions such as traffic lights and stop signs), and the 
regulated article must not be unpacked or unloaded in the quarantined 
area.

Issuance and Cancellation of Certificates and Limited Permits (Sec.  
301.86-5)

    Under Federal domestic plant quarantine programs, there is a 
difference between the use of certificates and limited permits. 
Certificates are issued for regulated articles when an inspector finds 
that, because of certain conditions (e.g., the article is from a field 
that has been surveyed for PCN by an inspector in the last 3 years and 
in which PCN has not been found, and no more than one PCN host crop has 
been grown in the field in the last 3 years), the regulated articles 
can be moved safely from the quarantined area without spreading PCN. 
Regulated articles accompanied by a certificate may be moved interstate 
without further restrictions. Limited permits are issued for regulated 
articles when an inspector finds that, because of a possible pest risk, 
the articles may be safely moved interstate only subject to further 
restrictions, such as movement to specified destinations and movement 
for limited purposes. Section 301.86-5 explains the conditions for 
issuing a certificate or limited permit.
    Paragraph (a) of Sec.  301.86-5 sets out the conditions under which 
an inspector or person operating under a compliance agreement will 
issue a certificate for the interstate movement of a regulated article. 
Paragraph (a)(1) provides that, to be eligible for a certificate, all 
regulated articles must be moved in compliance with any additional 
emergency conditions the Administrator may impose under section 414 of 
the Plant Protection Act (7 U.S.C. 7714) to prevent the spread of PCN. 
In addition, all regulated articles must be eligible for unrestricted 
movement under all other Federal domestic plant quarantines and 
regulations applicable to the regulated article. We have included a 
footnote (number 3) that provides an address for securing the addresses 
and telephone numbers of the local PPQ offices at which services of 
inspectors may be requested. We have also included a footnote (number 
4) that explains that the Secretary of Agriculture may, under the Plant 
Protection Act, take emergency actions to seize, quarantine, treat, 
destroy, or apply other remedial measures to articles that are, or that 
he or she has reason to believe are plants pests or are infested, 
infected by, or contain plant pests.
    Specific requirements apply to the movement of certain other 
regulated articles. These requirements are listed in paragraphs (a)(2) 
through (a)(7) of Sec.  301.86-5.

[[Page 51978]]

    Paragraph (a)(2) contains specific requirements that must be 
fulfilled for an inspector to issue a certificate for the movement of 
nursery stock. This paragraph addresses three classes of nursery stock:
     Potatoes intended for use as nursery stock (i.e., seed 
potatoes) are prohibited from moving interstate from the quarantined 
area. Because potatoes are the primary host of PCN, the interstate 
movement of living potatoes for planting would pose an extremely high 
risk of spreading PCN if we allowed it to occur.
     Nursery stock of PCN host crops other than potatoes, as 
listed in Sec.  301.86-2(b), must have been grown in a field that meets 
the following requirements:
    [cir] The field has been surveyed by an inspector for PCN at least 
once in the last 3 years;
    [cir] PCN has not been found in the field; and
    [cir] No more than one PCN host crop has been grown in the field in 
the last 3 years.
    While these crops are not primary hosts, they could still serve as 
pathways for the spread of PCN; allowing their movement only from 
fields that have been surveyed and found to be free of PCN will 
effectively mitigate this risk.
     Nursery stock of non-host crops that is moved with soil 
(for example, nursery stock grown and moved in potting soil) must have 
been grown in a field that meets the requirements for nursery stock of 
PCN host crops listed above. The regulations include this requirement 
because the interstate movement of soil poses a high risk of spreading 
PCN, since PCN dwells in soil before infesting a host. Nursery stock of 
non-host crops that is moved without soil must have been found by an 
inspector to be free of soil on its roots and on all other parts of the 
plant, in order to ensure that the movement of nursery stock of these 
non-host crops poses no risk.
    Paragraph (a)(3) addresses the movement of potatoes and root crops 
for consumption. Uses of potatoes and root crops produced for 
consumption include both table consumption and processing into products 
such as frozen french fries. Both potatoes and root crops moved for 
consumption are likely to carry soil, which poses a risk of spreading 
PCN. (Potatoes grown for use as nursery stock [seed potatoes] cannot be 
easily converted into potatoes grown for consumption.) Under paragraph 
(a)(3), an inspector may issue a certificate for the movement of 
potatoes or root crops intended for consumption from the quarantined 
area only if the field in which the potatoes or root crops have been 
grown meets the following requirements:
     The field has been surveyed by an inspector for PCN at 
least once in the last 3 years and prior to the planting of the 
potatoes or root crops;
     PCN has not been found in the field; and
     No more than one PCN host crop has been grown in the field 
the last 3 years.
    Paragraph (a)(4) addresses soil and associated products. An 
inspector may issue a certificate for the interstate movement of a 
regulated article listed in Sec.  301.86-2(e), which includes soil, 
compost, humus, muck, peat, and decomposed manure, and products on or 
in which soil is commonly found, including grass sod and plant litter, 
only if the article originated in a field that meets the following 
requirements:
     The field has been surveyed by an inspector for PCN at 
least once in the last 3 years;
     PCN has not been found in the field; and
     No more than one PCN host crop has been grown in the field 
the last 3 years.
    Paragraph (a)(5) addresses hay, straw, and fodder. These 
commodities also pose a risk because they may have soil attached. 
Accordingly, an inspector may issue a certificate for the movement of 
hay, straw, or fodder from the quarantined area only if the field where 
the hay, straw, or fodder was produced meets the following 
requirements:
     The field has been surveyed by an inspector for PCN at 
least once in the last 3 years;
     PCN has not been found in the field; and
     No more than one PCN host crop has been grown in the field 
the last 3 years.
    Alternatively, an inspector may issue a certificate for the 
interstate movement of hay, straw, or fodder if it is produced 
according to procedures judged by an inspector to be sufficient to 
isolate it from soil throughout its production and handling. Isolation 
of stored hay, straw, or fodder from soil is commonly accomplished by 
using asphalt, gravel, concrete, tarpaulins or pallets.
    Paragraph (a)(6) addresses equipment used in infested or associated 
fields. An inspector may issue a certificate for the interstate 
movement of equipment that has been used in an infested or associated 
field and that could carry soil if moved out of the field only after 
the equipment has been pressure-washed under the supervision of an 
inspector to remove all soil or steam-treated in accordance with 7 CFR 
part 305. If properly performed, the pressure-washing will remove all 
soil from the farm equipment, and the soil adhering to the farm 
equipment is what poses a risk of spreading PCN from the quarantined 
area. Properly performed steam treatment kills PCN.
    Paragraph (b)(1) of Sec.  301.86-5 sets out general conditions for 
the issuance of a limited permit. An inspector may issue a limited 
permit for the interstate movement of a regulated article if the 
inspector determines that the article is to be moved to a specified 
destination for specified handling, utilization, or processing, and 
that the movement will not result in the spread of PCN because life 
stages of PCN will be destroyed by the specified handling, processing, 
or utilization. A limited permit will only be issued if the regulated 
article will be moved in compliance with any additional emergency 
conditions imposed by the Administrator under section 414 of the Plant 
Protection Act (7 U.S.C. 7714) to prevent the spread of PCN, and if the 
regulated article is eligible for interstate movement under all other 
Federal domestic plant quarantines and regulations applicable to the 
regulated article.
    Paragraph (b)(2) sets out specific conditions for the issuance of a 
limited permit for the interstate movement from the quarantined area of 
potatoes intended for consumption. We anticipate that potatoes intended 
for consumption that are not eligible to move from the quarantined area 
with a certificate under paragraph (a)(3) may nonetheless need to be 
moved from the quarantined area for packing or processing. This 
paragraph sets out specific conditions under which they may be moved. 
An inspector may issue a limited permit to allow the interstate 
movement of potatoes from the quarantined area for packing or 
processing only if:
     The potatoes are transported in a manner that prevents the 
potatoes and soil attached to the potatoes from coming into contact 
with agricultural premises outside the quarantined area; and
     The potatoes are processed and packed at facilities that 
handle potatoes, waste, and waste water in a manner approved by APHIS 
to prevent the spread of PCN.
    As a matter of policy, we will not issue limited permits for 
potatoes grown in an infested field if they are grown in any year 
following the year in which PCN is initially detected in the field.
    Paragraph (c) of Sec.  301.86-5 allows any person who has entered 
into and is operating under a compliance agreement to issue a 
certificate or

[[Page 51979]]

limited permit for the interstate movement of a regulated article after 
an inspector has determined that the article is eligible for a 
certificate or limited permit under Sec.  301.86-5(a) or (b).
    Also, Sec.  301.86-5(d) contains provisions for the withdrawal of a 
certificate or limited permit by an inspector if the inspector 
determines that the holder of the certificate or limited permit has not 
complied with all of the provisions for the use of the document or with 
all the conditions contained in the document. This section also 
contains provisions for notifying the holder of the reasons for the 
withdrawal and for holding a hearing if there is any conflict 
concerning any material fact in the event that the person wishes to 
appeal the cancellation.

Compliance Agreements and Cancellation (Sec.  301.86-6)

    Section 301.86-6 provides for the use of and cancellation of 
compliance agreements. Compliance agreements are provided for the 
convenience of persons who are involved in the growing, handling, or 
moving of regulated articles from quarantined areas. A person may enter 
into a compliance agreement when an inspector has determined that the 
person requesting the compliance agreement has been made aware of the 
requirements of the regulations and the person has agreed to comply 
with the requirements of the regulations and the provisions of the 
compliance agreement. This section contains a footnote (number 7) that 
explains where compliance agreement forms may be obtained.
    Section 301.86-6 also provides that an inspector may cancel the 
compliance agreement upon finding that a person who has entered into 
the agreement has failed to comply with any of the provisions of the 
regulations. The inspector will notify the holder of the compliance 
agreement of the reasons for cancellation and offer an opportunity for 
a hearing to resolve any conflicts of material fact in the event that 
the person wishes to appeal the cancellation.

Assembly and Inspection of Regulated Articles (Sec.  301.86-7)

    Section 301.86-7 provides that any person (other than a person 
authorized to issue certificates or limited permits under Sec.  301.86-
5(c)) who desires a certificate or limited permit to move regulated 
articles must request, at least 48 hours before the desired interstate 
movement, that an inspector issue a certificate or limited permit. The 
regulated articles must be assembled in a place and manner directed by 
the inspector.

Attachment and Disposition of Certificates and Limited Permits (Sec.  
301.86-8)

    Section 301.86-8 requires the certificate or limited permit issued 
for movement of the regulated article to be attached, during the 
interstate movement, to the regulated article, or to a container 
carrying the regulated article, or to the consignee's copy of the 
accompanying waybill. Further, the section requires that the carrier or 
the carrier's representative must furnish the certificate or limited 
permit to the consignee listed on the certificate or limited permit 
upon arrival at the location provided on the certificate or limited 
permit.

Costs and Charges (Sec.  301.86-9)

    Section 301.86-9 explains the APHIS policy that the services of an 
inspector that are needed to comply with the regulations are provided 
without cost between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays, to persons requiring those services, but that APHIS 
will not be responsible for any costs or charges incident to 
inspections or compliance with the provisions of the quarantine and 
regulations in this subpart, other than for the services of the 
inspector.

Treatments in 7 CFR Part 305

    The phytosanitary treatments regulations contained in 7 CFR part 
305 set out standards and schedules for treatments required in 7 CFR 
parts 301, 318, and 319 for fruits, vegetables, and articles to prevent 
the introduction or dissemination of plant pests or noxious weeds into 
or through the United States. Within 7 CFR part 305, Sec.  305.2 lists 
approved treatments for pests associated with certain articles 
regulated in 7 CFR parts 301, 318, and 319.
    Certain treatments listed in Sec.  305.2 are approved for treating 
the golden nematode (G. rostochiensis) but not PCN. Due to the similar 
biology of these two pests, we believe that treatments approved to 
treat the golden nematode will be effective at treating PCN. 
Accordingly, we are amending Sec.  305.2 to amend certain treatments 
for the golden nematode to approve their use on PCN as well. These 
treatments are:
     Steam sterilization treatment T-406d, used for 
construction equipment without cabs, used farm equipment without cabs, 
and used containers; and
     Steam cleaning treatment T-406c, used for automobiles and 
used farm equipment with cabs.
    Section 305.2 also contains treatments for soil products that are 
approved to treat G. rostochiensis. However, the risk associated with 
moving soil from the PCN quarantined area is such that we are only 
allowing soil and soil products to move from the quarantined area with 
a certificate if they are from a field that has been surveyed by an 
inspector and found to be free of PCN. Therefore, we are not approving 
any of the treatments for soil products in Sec.  305.2 to be used to 
treat PCN.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
spread of PCN to noninfested areas of the United States.
    This rule is being made effective on November 1, 2007, because the 
potato harvesting season in Idaho ends on that date, and regulated 
parties will need time to prepare for the changes in operations that 
will become necessary when this rule becomes effective. Under these 
circumstances, the Administrator has determined that prior notice and 
opportunity for public comment are contrary to the public interest and 
that there is good cause under 5 U.S.C. 553 for making this rule 
effective less than 30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. 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.
    We are 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. This action 
is necessary on an emergency basis to prevent the spread of PCN to 
noninfested areas of the United States.
    Tests conducted by PPQ on June 12 and July 13, 2006, confirmed the 
presence of PCN in soil samples taken from two fields in Bingham 
County. Subsequently, four additional fields in Bingham County and one 
field in Bonneville County were found to be infested. This is the first 
detection of PCN from fields in the United States.
    In addition to potatoes, tomatoes, eggplant, peppers, tomatillos, 
and some

[[Page 51980]]

weeds also serve as host to the potato cyst nematode. The interim rule 
regulates the movement of potatoes and other host crops, as well as 
plants with roots, root crops, soil, any equipment used on farms that 
can carry soil, and any other products, articles, or means of 
conveyance when determined by an inspector to present a hazard of 
spread of PCN.
    Three different classes of nursery stock are regulated under the 
rule:
     Seed potatoes;
     Other host nursery stock (i.e. tomatoes, eggplant, 
peppers, and tomatillos); and
     Non-host nursery stock that is moved with soil.
    Seed potatoes are prohibited from moving interstate from the 
quarantined area since this would pose a high risk of spreading PCN. 
Other host nursery stock and non-host nursery stock in soil may be 
moved out of the quarantined area if either originates from a field 
that has been inspected at least once in the last three years, the 
field has been found to be free of PCN, and no more than one PCN host 
crop has been grown in the field in the last three years. Non-host 
nursery stock that is bare-rooted may be moved from the quarantined 
area after inspection to ensure the roots and all other plant parts are 
free of soil.
    Potatoes and root crops for consumption are allowed to move 
interstate from the quarantined area if the articles originate from a 
field found to be free of PCN, potatoes were grown in a field in which 
no more than one potato crop was grown in the previous 3 years, and 
articles are accompanied by a certificate. Soil, compost, humus, muck, 
peat, and manure, and products on or in which soil is commonly found, 
as well as hay, straw, or fodder may also move interstate from the 
quarantined area following the same criteria as that for potatoes and 
root crops for consumption. Interstate movement of equipment that has 
been used in an infested or associated field is allowed after the 
equipment has been pressure-washed under the supervision of an 
inspector to remove all soil or after it has been steam-treated.
    Potatoes for consumption that are not eligible to move from the 
quarantined area with a certificate are allowed to move from the 
quarantined area under limited permit if they are moved and processed 
under conditions designed to prevent the spread of PCN. APHIS will not 
issue limited permits for potatoes grown in an infested field if they 
are grown in any year following the year in which PCN is initially 
detected in the field. There are no domestic restrictions against the 
movement of processed products.
    APHIS is adding provisions for compliance agreements for entities 
operating inside the quarantined area to issue certificates and limited 
permits. An infested field will only be removed from quarantine after 
the completion of a 3-year biosurvey protocol approved by APHIS to 
determine whether the field is free of PCN. One means to ensure freedom 
of a field from PCN is not planting host crops in the area for at least 
30 years; another is following the APHIS eradication plan. The list of 
quarantined areas will be maintained on the PPQ Web site.
    U.S. production and exports.\1\ 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.
---------------------------------------------------------------------------

    \1\ Most information in this section is derived from the 
Economic Research Service's Potato Briefing Room, available online 
at: https://www.ers.usda.gov/Briefing/Potatoes/.
---------------------------------------------------------------------------

    From 2000 to 2005, acreage planted to fall potatoes and production 
of this variety decreased by 9 percent throughout the United States. 
The decline in Idaho's acreage and production was sharper, falling by 
22 percent and 23 percent, respectively. Yields over the same period 
remained relatively stable in the United States as a whole and Idaho in 
particular. Fall potatoes are marketed year-round from 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 contracted. 
Processing potatoes, on the other hand, are typically contracted.

                        Table 1.--Production and Farm Prices of Fall Potatoes in the United States, Idaho, Bingham County, Idaho, and Bonneville County, Idaho, 2000-2005
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          United States                                Idaho                        Bingham County, ID     Bonneville County, ID
                                                              ----------------------------------------------------------------------------------------------------------------------------------
                                                                                  Farm price                               Farm price
                                                                           -----------------------             ----------------------------------                 Farm                    Farm
                                                                Production    Table                 Production    Table                            Production    price     Production    price
                                                                              stock    processing                 stock    Processing   All uses
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                1,000 Cwt.        $ per Cwt.        1,000 Cwt.        $ per Cwt.       .........   1,000 Cwt.    $ per     1,000 Cwt.    $ per
                                                                                                                                                                  Cwt.                    Cwt.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2000.........................................................      467,529      $5.27       $4.70      152,320      (\a\)       (\a\)      $4.00       25,104      (\b\)        9,000      (\b\)
2001.........................................................      393,631      10.79        5.05      120,200      (\a\)       (\a\)       6.15       18,330      (\b\)        8,136      (\b\)
2002.........................................................      413,581       9.59        5.16      133,385      (\a\)       (\a\)       5.00       20,000      (\b\)        9,204      (\b\)
2003.........................................................      410,588       7.32        5.10      123,180      $3.85       $4.30       4.40       19,598      (\b\)        8,537      (\b\)
2004.........................................................      410,253       6.76        5.06      131,970       3.40        4.50       4.25       20,740      (\b\)        9,070      (\b\)
2005.........................................................      423,926      10.04        5.21      118,288       6.90        4.90       5.70       18,080      (\b\)        8,250     (\b\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Prices by use not available for these years.
\b\ No data available for prices at the county level.
 Source: USDA, NASS, Potatoes: 2005 Summary, September 2006 and USDA, NASS, Idaho Office, County Estimates: Potatoes 2005, September 2006.

    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 products from Canada 
tipped this balance so that the United States ran a trade deficit in 
those years. However, the imports of Canadian goods returned to 
historical levels in 2005, and the United States regained its status as 
a net exporter. Exports of

[[Page 51981]]

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, that 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. The outbreak of PCN in Idaho 
led to Japan's reimplementation of its ban on fresh potatoes from the 
United States.
    Idaho production and exports. Idaho specializes in production of 
fall potatoes. According to National Agricultural Statistics Service 
(NASS) data, there were no spring, summer, or winter potatoes produced 
in Idaho from 2000 to 2005. Over 65 percent of U.S. 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 in a processed form 
rather than fresh. This analysis only focuses on the fresh market since 
this is the portion that will be affected by the interim rule.
    From 2001 to 2006, Idaho exported on average $6.2 million worth of 
table potatoes to countries around the world. On average, a large 
portion, 67 percent, of Idaho's fresh exports was destined for Canada. 
Mexico also imported potatoes from Idaho, accounting for 23 percent of 
Idaho exports. Japan, as mentioned previously, historically has 
prohibited imports of fresh potatoes from the United States. Thus, 
although Japan is a substantial importer of processed products, its 
imports of fresh potatoes are 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  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
2006.........................................................        4,518        1,190         26.3        3,086         68.3            0         0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Source: Global Trade Information Services, World Trade Atlas: U.S. State Export Edition, April 2007.

    Alternatives available to producers. Under the interim rule, 
producers have two options for dealing with an infestation of PCN. The 
first of these is a quarantine program. Under this program, producers 
are prohibited from planting potatoes or any other host crop in the 
quarantined area for a minimum of 30 years. APHIS has determined that 
not planting host material for this amount of time will ensure that the 
PCN infestation has died out before the quarantine is lifted. This is 
based on the fact that PCN can survive for up to 30 years in a dormant 
state without any host crops on which to feed.
    Eradication is the second option available to affected potato 
producers. APHIS is currently working on a PCN eradication protocol. 
However, an approved protocol is not yet available. The eradication 
protocol will prevent producers from planting any crops on PCN affected 
and associated fields for a specified amount of time. However, APHIS 
will assume the costs of eradication for those producers wishing to 
participate in this program, to the extent that funds are available.

Initial 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 603 of the Act requires agencies to 
prepare and make available for public comment an initial regulatory 
flexibility analysis (IRFA) describing the expected impact of rules on 
small entities. Sections 603(b) and 603(c) of the Act specify the 
content of an IRFA. In this section, we address these IRFA 
requirements.

Reasons for Action

    APHIS is taking these actions based on the finding of PCN in Idaho. 
The quarantine measures are intended to curtail the spread of PCN to 
other areas of Idaho and the United States. The rule is likely to 
benefit a majority of potato producers in that it safeguards their 
fields from infestation. Additionally, declines in production resulting 
from the quarantine are not expected to be significant since the number 
of acres on which potatoes would not be grown accounts for only 0.3 
percent of Idaho's potato acreage.\2\
---------------------------------------------------------------------------

    \2\ Currently, 916 acres are considered to be infested and 
would, therefore, be ineligible for planting host crops.
---------------------------------------------------------------------------

Objectives and Legal Basis for Rule

    The objective of the interim rule is to prevent the spread of PCN 
by quarantining infested or associated fields or implementing APHIS 
approved eradication protocols for these 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 or 
eradication program and related movement restrictions will prevent the 
pest from spreading to other areas in Idaho and the rest of the United 
States.
    This rule amends 7 CFR part 301 by adding a new subpart regulating 
PCN. The legal basis for the implementation

[[Page 51982]]

of a quarantine to prevent the spread of PCN may be found in the Plant 
Protection Act (7 U.S.C. 7701 et seq.), which authorizes the Secretary 
of Agriculture to implement programs and policies designed to prevent 
the introduction and spread of plant pests and diseases.

Description and Estimated Number of Small Entities Regulated

    The PCN regulations being imposed by APHIS are intended to prevent 
the spread of the pest to additional areas. Approximately 2,500 of the 
330,000 acres planted to potatoes in Idaho are regulated under the 
current quarantine as imposed by the Federal Order. The potential 
economic impacts of regulating this area are presented in the following 
paragraphs.
    Given a quarantined area of approximately 2,500 acres, 800,100 
pounds of production are estimated to be affected by the rule.\3\ A 
reduction in production of this magnitude is not likely to have a 
significant economic impact on the potato industry. Despite the minimal 
impacts on domestic production, export markets have been closed due to 
the PCN outbreak. While Canada and Mexico have banned imports of fresh 
potatoes from Idaho, Japan has banned imports of fresh potatoes 
produced anywhere in the United States. However, export statistics 
indicate that the vast majority of U.S. potatoes are consumed 
domestically. From 2000 to 2005, exports of fresh and processed 
potatoes amounted to approximately 7 percent of domestic production. 
Based on current restrictions on U.S. imports resulting from the PCN 
outbreak, we expect exports to decline by approximately 19 percent, 
accounting for less than 2 percent of domestic production. The 
reduction in the value of exports is expected to be larger, since the 
United States exports more processed products than table potatoes. 
However, given that domestic demand and supply can fluctuate by as much 
as 4 percent from one year to the next coupled with the potato's 
storage capability, it is likely that the domestic market will be able 
to absorb the excess supply created by import bans placed on U.S. 
potatoes because of the discovery of PCN in certain parts of Idaho.\4\
---------------------------------------------------------------------------

    \3\ Estimates are based on historical yields from Bingham and 
Bonneville Counties and the estimated number of acres quarantined 
under the rule. An average of the yields from 2000 to 2005 excluding 
the high and low yields from the period is multiplied by the number 
of acres quarantined to estimate the level of production for the 
quarantined area. The production numbers for the two counties are 
then averaged to obtain the estimate reported above.
    \4\ Only reductions of U.S. potato imports by other countries 
attributable to the presence of PCN in certain areas of Idaho are 
considered here.
---------------------------------------------------------------------------

    Producers subject to the quarantine may be negatively impacted by 
this regulatory action. Those with infested fields will not be able to 
plant any host crop, including potatoes, tomatoes, or eggplant, for at 
least 30 years if they are seeking to remove their fields from 
quarantine, unless a PCN eradication protocol approved by the 
Administrator is developed. However, producers may plant non-host crops 
on the quarantined acreage. In Bingham County, ID, the area planted to 
potatoes is second only to that planted to wheat. Producers in this 
county also grow corn, oats, barley, sugarbeets, and alfalfa hay. Based 
on historical production (table 3) and farmers' desire to make a 
profit, it is likely that farmers in the quarantined area would choose 
to plant one of these crops rather than forgo 30 years of revenue which 
could be generated from the land under quarantine. The planting 
decision would be a function of market prices, input costs, and 
expected government payments for those commodities classified as a 
program crop. Farmers may choose to plant one commodity or multiple 
commodities depending on these factors. Given alternative production 
opportunities, it is not clear how producers in the quarantined area 
would be affected. If the crops mentioned above are viable substitutes 
in production for the ineligible crops, producers will likely not face 
substantial impacts due to the quarantine regulations. APHIS welcomes 
public comment on this issue.

          Table 3.--Harvested Acreage and Production of Various Crops in Bingham County, ID, 2000-2005
----------------------------------------------------------------------------------------------------------------
                                                                 Wheat        Barley        Hay        Potatoes
----------------------------------------------------------------------------------------------------------------
                                                                                Harvested acres
----------------------------------------------------------------------------------------------------------------
2000........................................................      132,200       22,500       52,300       67,000
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
----------------------------------------------------------------------------------------------------------------
                                                                           Production (1,000 Pounds)
----------------------------------------------------------------------------------------------------------------
2000........................................................      858,600      104,016      517,600    2,510,400
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
----------------------------------------------------------------------------------------------------------------
Source: USDA, NASS, Quick Stats Database, U.S. and All States County Data--Crops, October 2006.

?>
[[Page 51983]]


                             Table 4.--Harvested Acreage and Production of Various Crops in Bonneville County, ID, 2000-2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Corn         Corn
                                                                  Wheat       (grain)      (silage)       Oats        Barley        Hay        Potatoes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                    Harvested acres
--------------------------------------------------------------------------------------------------------------------------------------------------------
2000.........................................................    4,185,000            0       40,000       42,000    4,746,000      128,500    9,000,000
2001.........................................................    3,200,000       20,000       39,100       77,000    4,910,000      121,000    8,136,000
2002.........................................................    2,980,000            0       59,000       58,000    5,840,000      128,400    9,204,000
2003.........................................................    2,420,000  ...........  ...........       33,000    4,380,000      124,000    8,537,000
2004.........................................................    3,580,000       12,000       97,000       33,000    6,572,000      127,400    9,070,000
2005.........................................................    3,065,000      170,000      114,000       15,000    6,904,000      131,600    8,250,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Production (1,000 Pounds)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2000.........................................................      251,100            0       80,000        1,344      227,808      257,000      900,000
2001.........................................................      192,000        1,120       78,200        2,464      235,680      242,000      813,600
2002.........................................................      178,800            0      118,000        1,856      280,320      256,800      920,400
2003.........................................................      145,200  ...........  ...........        1,056      210,240      248,000      853,700
2004.........................................................      214,800          672      194,000        1,056      315,456      254,800      907,000
2005.........................................................      183,900        9,520      228,000          480      331,392      263,200     825,000
------------------------------------------------------------------------------------------------------------------------------------------