[Federal Register Volume 69, Number 2 (Monday, January 5, 2004)]
[Rules and Regulations]
[Pages 247-249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-79]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 03-082-1]


Golden Nematode; Regulated Areas

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the golden nematode regulations by adding a 
field in Steuben County, NY, to the list of generally infested 
regulated areas. This action is necessary to prevent the artificial 
spread of golden nematode to noninfested areas of the United States.

DATES: This interim rule is effective January 5, 2004. We will consider 
all comments that we receive on or before March 5, 2004.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 03-082-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 03-082-1. If you use e-mail, 
address your comment to [email protected]. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
03-082-1'' on the subject line.
    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.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Vedpal Malik, Agriculturalist, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
134, Riverdale, MD 20737-1236; (301) 734-6774.

SUPPLEMENTARY INFORMATION:

Background

    The golden nematode (Globodera rostochiensis) is a destructive pest 
of potatoes and other solanaceous plants. Potatoes cannot be 
economically grown on land which contains large numbers of the 
nematode. The golden nematode has been determined to occur in the 
United States only in parts of New York.
    The golden nematode regulations (contained in 7 CFR 301.85 through 
301.85-10 and referred to below as the regulations) list two entire 
counties and portions of seven other counties in the State of New York 
as regulated areas and restrict the interstate movement of regulated 
articles from those areas. Such restrictions are necessary to prevent 
the artificial spread of the golden nematode to noninfested areas of 
the United States.
    Regulated areas are those areas in which the golden nematode has 
been found or in which there is reason to believe that the golden 
nematode is present, or those areas which it is deemed necessary to 
regulate because of their proximity to infestation or their 
inseparability for quarantine enforcement purposes from infested 
localities. The regulations provide that less than an entire State may 
be designated as a regulated area only if the Deputy Administrator 
determines that the State has adopted and is enforcing a quarantine or 
regulation that imposes restrictions on the intrastate movement of the 
regulated articles that are substantially the same as those that are 
imposed with respect to the interstate movement of the articles and the 
designation of less than the entire State as a regulated area will 
otherwise be adequate to prevent the artificial interstate spread of 
the golden nematode.

[[Page 248]]

    Regulated areas are divided into suppressive areas and generally 
infested areas. Suppressive areas are regulated areas where eradication 
of the golden nematode is undertaken as an objective. Generally 
infested areas are regulated areas not designated as suppressive areas. 
Restrictions are imposed on the interstate movement of regulated 
articles from generally infested areas and suppressive areas in order 
to prevent the infestation of areas where the golden nematode does not 
occur.
    Recent surveys conducted by inspectors of the Animal and Plant 
Health Inspection Service (APHIS) have revealed that an infestation of 
golden nematode has occurred in one field outside the regulated area in 
Steuben County, NY. New York has quarantined the infested area and is 
restricting the intrastate movement of regulated articles from that 
area to prevent the further spread of golden nematode. However, Federal 
regulations are necessary to restrict the interstate movement of 
regulated articles from the regulated areas to prevent the spread of 
golden nematode to other States and other countries.
    In accordance with the criteria for listing regulated areas, we are 
amending the list of regulated areas in Sec.  301.85-2a to include an 
additional part of Steuben County, NY, in response to the recent golden 
nematode findings described above. The regulated area is described in 
the rule portion of this document. Maps of the regulated area are 
available by writing to the person listed under FOR FURTHER INFORMATION 
CONTACT or from local offices of Plant Protection and Quarantine.
    In addition to amending the entry for Steuben County, NY, to 
reflect the addition of a field to the regulated area, we have also 
divided that entry into subparagraphs so that it is easier to read.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
artificial spread of golden nematode to noninfested areas of the United 
States. Under these circumstances, the Administrator has determined 
that prior notice and opportunity for public comment are contrary to 
the public interest and that there is good cause under 5 U.S.C. 553 for 
making this rule effective less than 30 days after publication in the 
Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    We are amending the golden nematode regulations by adding a field 
in Steuben County, NY, to the list of generally infested regulated 
areas. This action is necessary to prevent the artificial spread of 
golden nematode to noninfested areas of the United States.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of their rules on small entities and to use flexibility 
to provide regulatory relief when regulations create economic 
disparities between different sized entities. According to the Small 
Business Administration's (SBA's) Office of Advocacy, regulations 
create economic disparities based on size when they have significant 
economic impact on a substantial number of small entities.
    Potato farms are classified as small businesses if they receive 
less than $750,000 in annual sales receipts. The U.S. Department of 
Agriculture's National Agricultural Statistics Service does not publish 
data on farm size for New York potato farms. However, it is likely that 
the regulated 30-acre farm in Steuben County qualifies as a small 
business as defined by the SBA.
    In the United States, the potato is the leading vegetable in terms 
of acreage and farm value. About 1.3 million acres are grown for a 
total production yield of 31.4 billion pounds, worth $2.5 billion in 
farm receipts. Over 60 percent of U.S. potato production is processed. 
Growth in the chip market alone has averaged about 11 percent per year 
over the past 8 years, resulting in a $4 billion industry. The market 
for exported, processed potatoes is a rapidly growing one.
    Golden nematode infestation of potatoes and other solanaceous 
plants (e.g., tomatoes, eggplants) poses a threat to New York's 
agricultural economy. New York State is the twelfth largest potato 
producer nationwide, with an average of 25,000 acres of potatoes 
harvested annually. According to the New York Agricultural Statistics 
Service, New York State had approximately 22,200 planted acres of 
potatoes with a production value totaling $64.9 million. About 55 
percent of New York State's potato production is destined for the fresh 
market, 40 percent for processing, and 5 percent for seed and livestock 
feed. New York State potatoes and potato products are primarily 
consumed locally and within the northeastern portion of the United 
States. In 2001, the production value of major solanaceous plants in 
New York was $92.4 million.
    The additional costs associated with our designation of the new 
regulated area in Steuben County are very small relative to the 
benefits gained from agricultural sales. For example, the treatment 
costs for the infected fields are borne by APHIS and not the farmer. 
The only inconvenience to the farm operator might be that potatoes or 
any other solanaceous plants may be planted only every other year until 
the infestation is determined to be over. In the years when potatoes 
and other solanaceous plants may be planted, farm operators may move 
such articles without treatment. In the event that the farm operator 
needs to move farm equipment outside the farm, that equipment must 
first be treated, either chemically or with steam. The costs of 
treatment are borne by APHIS. It takes one 8-hour day for a Plant 
Protection and Quarantine officer and a technician to steam treat farm 
equipment, including the time required to set up and tear down the 
treatment site. Since the farm operator does not have to pay for any 
aspect of this treatment, this rule will not have any adverse economic 
impact on this farm.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This rule contains no new information collection or recordkeeping 
requirements under the Paperwork

[[Page 249]]

Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.


0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.

    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).


0
2. In Sec.  301.85-2a, under the heading ``New York'', the entry for 
Steuben County is revised to read as follows:


Sec.  301.85-2a  Regulated areas; suppressive and generally infested 
areas.

* * * * *

New York

    (1) Generally infested area:
* * * * *
    Steuben County. (A) The towns of Prattsburg and Wheeler;
    (B) That area known as ``Arkport Muck'' located in the town of 
Dansville and bounded by a line beginning at a point where the Conrail 
right-of-way (Erie Lackawanna Railroad) intersects County Road 52 
(known as Burns Road), then north and northeast along County Road 52 to 
its junction with New York Route 36, then south and southeast along New 
York Route 36 to its intersection with the Dansville Town line, then 
west along the Dansville Town line to its intersection with the Conrail 
right-of-way (Erie Lackawanna Railroad), then north and northwest along 
the Conrail right-of-way to the point of beginning;
    (C) The Werth, Dale farm, known as the ``Werthwhile Farm,'' located 
in the town of Cohocton on the north side of County Road 5 (known as 
Brown Hill Road), and 0.2 mile west of the junction of County Road 5 
with County Road 58 (known as Wager Road); and
    (D) The property located in the town of Fremont that is bounded as 
follows: Beginning at a point on Babcock Road that intersects a farm 
road marked by latitude/longitude coordinates 42[deg]26'12.5'', -
77[deg]34'30.4''; then west along the farm road to coordinates 
42[deg]26'12.2'', -77[deg]34'41.0''; then south to coordinates 
42[deg]26'09.6'', -77[deg]34'40.9''; then west to coordinates 
42[deg]26'09.4'', -77[deg]34'50.7''; then south to coordinates 
42[deg]26'00.7'', -77[deg]34'50.3''; then east to coordinates 
42[deg]25'59.9'', -77[deg]34'40.4''; then south to coordinates 
42[deg]25'54.7'', -77[deg]34'40.0''; then east to coordinates 
42[deg]25'56.3'', -77[deg]34'37.7''; then north to coordinates 
42[deg]25'58.9'', -77[deg]34'35.0''; then east to coordinates 
42[deg]25'58.9'', -77[deg]34'34.1''; then north to coordinates 
42[deg]26'05.8'', -77[deg]34'32.5''; then east to coordinates 
42[deg]26'05.7'', -77[deg]34'29.9''; then north to the point of 
beginning at coordinates 42[deg]26'12.5'', -77[deg]34'30.4''.
* * * * *

    Done in Washington, DC, this 29th day of December, 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-79 Filed 1-2-04; 8:45 am]
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