[Federal Register Volume 84, Number 42 (Monday, March 4, 2019)]
[Proposed Rules]
[Pages 7304-7306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03673]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 84, No. 42 / Monday, March 4, 2019 / Proposed 
Rules  

[[Page 7304]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2018-0041]
RIN 0579-AE48


Amendments to the Pale Cyst Nematode Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the domestic quarantine regulations 
for pale cyst nematode by adding procedures that would allow persons to 
review and comment on the protocols for regulating and deregulating 
quarantine and associated areas. As part of this proposal, we are 
making the protocols publicly available. We are proposing these actions 
in response to a court order requiring the Animal and Plant Health 
Inspection Service to facilitate public input into the development of 
protocols for deregulating fields for pale cyst nematode. The changes 
we propose would make the protocols more accessible and give persons 
the opportunity to comment on their development.

DATES: We will consider all comments that we receive on or before May 
3, 2019.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2018-0041.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2018-0041, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2018-
0041 or in our reading room, which 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) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Ms. Evelia Sosa, Assistant Director, 
Pest Management, PHP, PPQ, APHIS, 4700 River Road, Unit 137, Riverdale, 
MD 20737; (301) 851-2217; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The pale cyst nematode (PCN, Globodera pallida) is a major pest of 
potato crops in cool-temperature areas. Other hosts of this pest 
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. Females commonly form 
cysts containing 200 to 600 eggs, which can remain dormant and viable 
in soil for up to 30 years. Affected potato plants may exhibit 
yellowing, wilting, or death of foliage. Unmanaged infestations can 
cause potato yield losses ranging from 20 to 70 percent. The spread of 
PCN in the United States could result in a significant loss of domestic 
and foreign markets for U.S. potatoes and other host commodities.
    Section 414 of the Plant Protection Act (PPA, 7 U.S.C. 7714) 
provides that the Secretary of Agriculture may, under certain 
conditions, hold, seize, quarantine, treat, apply other remedial 
measures to destroy or otherwise dispose of any plant, plant pest, 
plant product, article, or means of conveyance that is moving, or has 
moved into or through the United States or interstate if the Secretary 
has reason to believe the article is a plant pest or is infested with a 
plant pest at the time of movement.
    The PCN regulations in 7 CFR part 301 (Subpart--Pale Cyst Nematode, 
Sec. Sec.  301.86 through 301.86-9, referred to below as the 
regulations) set out quarantine and movement restrictions for regulated 
articles from fields infested with PCN and associated fields.
    Section 301.86-3 sets out procedures for determining the areas 
quarantined for PCN. Paragraph (a) of Sec.  301.86-3 states that, in 
accordance with the criteria listed in Sec.  301.86-3(c), the 
Administrator of the Animal and Plant Health Inspection Service (APHIS) 
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.
    Under Sec.  301.86-3(c), APHIS designates a field as being infested 
if PCN is found in that field. A field is designated as an associated 
field, meaning that the field is at risk for PCN, if it meets certain 
criteria. These include any field in which PCN host crops were grown in 
the last 10 years, and (1) The field shares a border with an infested 
field; or (2) the field came into contact with a regulated article 
listed in Sec.  301.86-2 from an infested field within the last 10 
years; or (3) within the last 10 years, the field shared ownership, 
tenancy, seed, drainage or runoff, farm machinery, or other shared 
cultural practices with an infested field that could allow spread of 
PCN.
    Paragraph (d) of Sec.  301.86-3 states that an infested field will 
be removed from quarantine when a protocol approved by the 
Administrator as sufficient to support removal of infested fields from 
quarantine has been completed and the field has been found to be free 
from PCN based on the protocol. The removal from quarantine of any 
associated fields also requires steps under an approved protocol.
    The PCN regulations were first established in an interim rule 
published September 12, 2007 (72 FR 51975-51988, Docket No. APHIS-2006-
0143), after parts of Bingham and Bonneville Counties, ID, were 
quarantined upon discovery of PCN in several potato fields in 2006. The 
interim rule restricted the interstate movement of potatoes and other 
regulated articles from the quarantined area to prevent the spread of 
PCN to non-infested areas of the United States. We included in Sec.  
301.86-3 of the interim rule the provision that an infested field will 
be removed from quarantine when a 3-year biosurvey protocol approved by 
APHIS has been

[[Page 7305]]

completed and the field has been found to be free of PCN. The 3-year 
biosurvey protocol involves planting PCN host crops in soil from a 
field and sampling the soil for PCN. This process must be repeated over 
three crop cycles with negative results in order for APHIS to 
deregulate a field for PCN.
    On April 29, 2009 (74 FR 19374-19382, Docket No. APHIS-2006-0143), 
we published a final rule based on our evaluation of public comments 
that we received on the interim rule and input from an independent 
science panel. Based on our review of this information, we determined 
that including the 3-year biosurvey protocol in the regulations as the 
only approach for deregulating fields precluded the potential use of 
other methods that would be sufficient for evaluating fields for PCN, 
so we broadened the approach in Sec.  301.86-3(d)(1) to read ``a 
protocol approved by the Administrator as sufficient to support removal 
of infested fields from quarantine.'' We stated in the final rule that 
we would continue to solicit stakeholder input as we develop the field 
removal protocol and update affected producers and other interested 
parties on our progress.
    On April 28, 2015, a group of Idaho potato farmers subject to the 
PCN quarantine filed a complaint against APHIS in the U.S. District 
Court in Idaho. Among the allegations in the complaint was that APHIS 
violated provisions of the PPA and the Administrative Procedure Act 
(APA) by not developing accessible regulations and failing to follow 
notice and comment requirements of the APA. The plaintiffs alleged that 
the final rule contemplated further rulemaking through the creation of 
protocols to be used to support removal of infested and associated 
fields from regulation. Because APHIS had not publically issued the 
protocol referenced in the final rule, the plaintiffs stated they were 
unclear as to what methods and data APHIS drew on in deciding whether 
to deregulate infested and associated fields, making the requirements 
imposed on the plaintiffs vague and impossible to satisfy. The 
complaint asked the court to set aside the final rule and end the 
quarantine and regulation of all fields owned and farmed by the 
plaintiffs.
    In a decision filed March 20, 2018,\1\ the court declined to set 
aside the final rule, citing the economic value of the potato industry 
and noting that ending regulation for PCN would have adverse 
consequences on the State of Idaho and the United States. However, the 
court ruled that APHIS did not satisfy the requirements of the APA 
because the deregulation protocols ``change existing law by adding new 
substantive requirements for the quarantining and deregulating of PCN 
infested and associated fields to be implemented by APHIS pursuant to 
its authority under the PPA.'' Accordingly, the protocols were 
determined to be legislative rules for which APHIS is required to 
provide a notice of availability of the protocols in the Federal 
Register, provide a period for interested individuals to comment on the 
protocols, and publish the adopted protocols not less than 30 days 
before the effective date. The court ordered APHIS to immediately begin 
the process of providing for public notice and comment on the protocols 
and to satisfy the APA notice and comment requirements for all current 
and future actions relating to regulation of PCN.
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    \1\ https://www.gpo.gov/fdsys/pkg/USCOURTS-idd-1_15-cv-00143/pdf/USCOURTS-idd-1_15-cv-00143-2.pdf.
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    We are responding to the court order in this rulemaking by 
proposing to include procedures in the regulations for public notice 
and comment of the PCN deregulation protocols. Although not ordered to 
do so by the court, we are proposing to do the same for the criteria 
APHIS uses to make initial designations of fields. We are proposing to 
amend Sec.  301.86-3, paragraphs (c) and (d), to provide that any 
substantive changes to the protocols will first be announced in a 
Federal Register notice that informs the public of the proposed change 
and solicits comment. After we review and consider public comments on 
the changes, we would publish another notice in the Federal Register 
informing the public of any changes we made to the protocols.
    The protocols are available for comment on the Regulations.gov 
website and in our reading room (see ADDRESSES above for instructions 
for accessing Regulations.gov and information on the location and hours 
of the reading room). We would make future versions of protocols 
available on the APHIS website or upon request from any local office of 
APHIS-Plant Protection and Quarantine; local offices are listed in 
telephone directories.
Executive Orders 12866 and 13771 and Regulatory Flexibility Act
    This proposed 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 proposed rule is 
not expected to be an Executive Order 13771 regulatory action because 
this proposed rule is not significant under Executive Order 12866.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov website (see ADDRESSES above for instructions 
for accessing Regulations.gov).
    According to the Small Business Administration, entities whose main 
activity is potato farming (classified under NAICS 111211) are 
considered small if they have $750,000 or less in annual receipts. 
Based on the 2012 Census of Agriculture, there were about 24,000 farms 
in Idaho, of which around 800 were considered to be primarily potato 
farms. Bingham and Bonneville Counties had 122 and 36 potato farms, 
respectively. There were about 2,000 farms in Idaho with farm sales 
greater than $500,000, of which around 1,200 farms had farm sales 
greater than $1 million. According to the 2012 Census, 142 of Bingham 
County's 1,265 farm operations (about 11 percent) had farm sales 
greater than $500,000, while in Bonneville County, 56 of the 893 farm 
operations (about 6 percent) had farm sales greater than $500,000. 
Although the distribution of potato farms with farm sales above 
$500,000 (or $750,000) is not known, it is reasonable to conclude that 
many of the potato farms in Bingham and Bonneville counties are under 
the threshold and would be considered as small business entities.
    However, the proposed rule would not impose new or additional 
burdens on small entities as this is an administrative action for which 
there would be no additional costs.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.
Executive Order 12372
    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 2 CFR chapter IV.)
Executive Order 12988
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with

[[Page 7306]]

this rule will be preempted; (2) no retroactive effect will be given to 
this rule; and (3) administrative proceedings will not be required 
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
    This proposed rule contains no reporting, recordkeeping, or third 
party disclosure requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

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

    Accordingly, we propose to amend 7 CFR part 301 as follows:

Subpart S--Pale Cyst Nematode

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

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).

0
2. Section 301.86-3 is amended as follows:
0
a. In paragraph (a), by removing the words ``http://www.aphis.usda.gov/plant_health/plant_pest_info/potato/pcn.shtml'' and adding the words 
``https://www.aphis.usda.gov/planthealth/pcn'' in their place; and
0
b. By revising paragraphs (c)(1) and (d).
    The revisions read as follows:


Sec.  301.86-3   Quarantined areas.

* * * * *
    (c) * * *
    (1) Infested fields. A field will be designated as an infested 
field for pale cyst nematode upon a determination that viable pale cyst 
nematode is present in the field. The determination will be made in 
accordance with the criteria established by the Administrator for the 
designation of infested fields. The criteria are presented in a 
protocol document that may be viewed at https://www.aphis.usda.gov/planthealth/pcn. The protocol may also be obtained by request from any 
local office of Plant Protection and Quarantine; local offices are 
listed in telephone directories. Any substantive changes we propose to 
make to the protocol will be published for comment in the Federal 
Register. After we review the comments received, we will publish 
another notice in the Federal Register informing the public of any 
changes to the protocol.
* * * * *
    (d) Removal of fields from quarantine--(1) Infested fields. An 
infested field will be removed from quarantine for pale cyst nematode 
upon a determination that no viable pale cyst nematode is detected in 
the field. The determination will be made in accordance with criteria 
established by the Administrator and sufficient to support removal of 
infested fields from quarantine. The criteria are presented in a 
protocol document as provided in (d)(4) of this section along with 
information for viewing the protocol.
    (2) Associated fields. An associated field will be removed from 
quarantine for pale cyst nematode once surveys are completed and pale 
cyst nematode is not detected in the field. The determination will be 
made in accordance with criteria established by the Administrator and 
sufficient to support removal of associated fields from quarantine. The 
criteria are presented in a protocol document as provided in (d)(4) of 
this section along with information for viewing the protocol.
    (3) Removal of other areas from quarantine. If the Administrator 
has quarantined any area other than infested or associated fields 
because of its inseparability for quarantine enforcement purposes from 
infested or associated fields, as provided in paragraph (a) of this 
section, that area will be removed from quarantine when the relevant 
infested or associated fields are removed from quarantine.
    (4) Protocol for removal of fields from quarantine. The 
Administrator will remove infested and associated fields, and other 
areas as provided in this section, from quarantine for pale cyst 
nematode in accordance with the protocols published on the Plant 
Protection and Quarantine website at https://www.aphis.usda.gov/planthealth/pcn. The protocols may also be obtained by request from any 
local office of Plant Protection and Quarantine; local offices are 
listed in telephone directories. Any substantive changes we propose to 
make to the protocols will be published for comment in the Federal 
Register. After we review the comments received, we will publish 
another notice in the Federal Register informing the public of any 
changes to the protocols.

    Done in Washington, DC, this 25th day of February 2019.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2019-03673 Filed 3-1-19; 8:45 am]
 BILLING CODE 3410-34-P