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Code · REGISTER · 2007-09-12 · Agency Agency for Healthcare Research and Quality NOTICES Agency information collection activities; proposals, submissions, and approvals, 52131-52132 07-4447 Agricultural Agricultural Marketing Servi · Unknown

Unknown. Interim rule and request for comments

20,141 words·~92 min read·/register/2007/09/12/07-4490

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2007-09-12.xml --- 72 176 Wednesday, September 12, 2007 Contents Agency Agency for Healthcare Research and Quality NOTICES Agency information collection activities; proposals, submissions, and approvals, 52131-52132 07-4447 Agricultural Agricultural Marketing Service RULES Almonds grown in California, 51990-51992 07-4490 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Farm Service Agency See Forest Service See Rural Utilities Service Air Force Air Force Department NOTICES Meetings:
Global Positioning Systems Wing, 52089 E7-17958 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic: Potato cyst nematode, 51975-51988 E7-17842 Census Census Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 52047-52048 E7-17919 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 52132-52133 E7-17962 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act; systems of records, 52133-52140 E7-17907 Coast Guard Coast Guard RULES Drawbridge operations:
Maryland and Virginia, 52007 E7-18017 New Jersey, 52006-52007 E7-17996 New York, 52007 E7-17994 Commerce Commerce Department See Census Bureau See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 52046-52047 E7-17920 E7-17921 Defense Defense Department See Air Force Department See Defense Logistics Agency NOTICES Meetings:
Defense Science Board, 52087-52088 07-4464 07-4465 07-4466 07-4467 Meetings; Sunshine Act, 52088-52089 07-4499 Defense Defense Logistics Agency NOTICES Senior Executive Service Performance Review Board; membership, 52089 07-4462 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 52089-52091 07-4445 07-4446 Grants and cooperative agreements; availability, etc.: Postsecondary education— Gaining Early Awareness and Readiness for Undergraduate Programs Program (GEAR UP), 52091 07-4471 Employee Employee Benefits Security Administration RULES Employee Retirement Income Security Act:
Individual account plans; annuity providers selection, 52004-52006 E7-17744 PROPOSED RULES Employee Retirement Income Security Act: Individual account plans; annuity providers selection, 52021-52025 E7-17743 Employment Employment Standards Administration See Wage and Hour Division Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States: North Carolina, 52010-52012 E7-17797 Grants and cooperative agreements; availability, etc.:
Revising Budget Period Limitation for research Grants and Cooperative Agreements, 52008-52010 E7-18000 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Captan, 2,4-D, etc., 52013-52020 E7-17982 PROPOSED RULES Air pollution control: Federal and State operating permit programs; prevention of significant deterioration and nonattainment new source review; flexible air permitting rule, 52206-52261 E7-17418 Air quality implementation plans; approval and promulgation; various States:
Michigan, 52038-52044 E7-18026 North Carolina, 52027 E7-17780 South Carolina, 52031-52038 E7-17979 Virginia, 52028-52031 E7-17977 NOTICES Confidential business information and data transfer, 52106 E7-17990 Meetings: Board of Scientific Counselors, 52107 E7-17997 Pesticide programs: Federal Food, Drug, and Cosmetic Act— Pesticide active ingredients and inerts; list, 52108 E7-17984 Tolerance reassessment decisions— Pyraclostrobin, 52108-52125 E7-18025 Pesticide registration, cancellation, etc.:
Zinc Borate, 52125-52127 E7-18043 Pesticides; experimental use permits, etc.: Bayer CropScience, 52127-52128 E7-17769 Reports and guidance documents; availability, etc.: Coal combustion wastes disposal in landfills and surface impoundments; data availability Correction, 52203 Z7-17138 Executive Executive Office of the President See Presidential Documents Farm Farm Credit System Insurance Corporation NOTICES Meetings: Farm Credit System Insurance Corporation Board, 52128 E7-17911 Farm Farm Service Agency RULES Special programs:
Indian Tribal Land Acquisition Program; loan writedowns, 51988-51990 E7-18032 FAA Federal Aviation Administration RULES Airworthiness directives: McDonnell Douglas, 51994-52000 E7-17829 E7-17844 Pacific Aerospace Corp., 51996-51997 E7-17828 Airworthiness standards: Special conditions— Malibu Power & Propeller Int’l, LLC, PA-46-310P and PA-46-350P, 51992-51994 E7-18013 NOTICES Aeronautical land-use assurance; waivers: Outagamie County Airport, WI, 52195-52196 07-4477 Meetings:
Research, Engineering, and Development Advisory Committee, 52196 07-4476 RTCA, Inc., 52196 07-4475 FCC Federal Communications Commission NOTICES Meetings; Sunshine Act, 52128-52129 07-4497 Federal Emergency Federal Emergency Management Agency NOTICES Meetings: National Fire Academy Board of Visitors, 52160-52161 E7-17915 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed: Montana Consumer Counsel, 52097 E7-17967 Electric rate and corporate regulation combined filings, 52097-52098 E7-17946 Environmental statements; availability, etc.:
AmerenUE, 52098 E7-17923 Idaho Power Co., 52098-52099 E7-17925 Hydroelectric applications, 52099-52104 E7-17924 E7-17931 E7-17932 E7-17933 E7-17963 Meetings: Hydrokinetic Pilot Project workshop; technical conference, 52104-52105 E7-17930 Off-the-record communications, 52105 E7-17922 Reports and guidance documents; availability, etc.: Gas rate filings, etc., 52105-52106 E7-17926 *Applications, hearings, determinations, etc.:* Camp Grove Wind Farm, LLC, 52091-52092 E7-17929 Castlebridge Energy Group LLC, 52092 E7-17964 Chandler Wind Partners, LLC, 52092-52093 E7-17965 Columbia Utilities Power, LLC, 52093 E7-17927 Electric Transmission Texas, LLC, 52093-52094 E7-17968 Empire State Pipeline et al., 52094 E7-17969 Entergy Services, Inc., 52094 E7-17934 Forked River Power, LLC, 52094-52095 E7-17928 Northern Natural Gas Co., 52095-52096 E7-17914 Ridge Crest Wind Partners, LLC, 52096-52097 E7-17966 Federal Highway Federal Highway Administration NOTICES Environmental statements; availability, etc.:
Los Angeles County, CA, 52196-52197 E7-17970 Environmental statements; notice of intent: San Diego, CA, 52197 E7-17912 Federal Reserve Federal Reserve System NOTICES Bank and bank holding companies: Permissible nonbanking activities, 52129 E7-17943 Banks and bank holding companies: Formations, acquisitions, and mergers, 52129-52130 E7-17942 E7-17944 Meetings; Sunshine Act, 52130 07-4492 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 52140-52141 E7-18033 Meetings:
Cardiovascular and Renal Drugs Advisory Committee, 52141 E7-18031 Medical Devices Advisory Panel, 52142 E7-17983 Reports and guidance documents; availability, etc.: FDA Modernization Act of 1997— Recognized Standards List modifications (Recognition List Number 018), 52142-52153 E7-18021 Forest Forest Service NOTICES Meetings: Resource Advisory Committees— Colville National Forest, 52045 07-4463 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration NOTICES National Toxicology Program:
Alternative toxicological methods evaluation— Murine local lymph node assay; draft performance standards, 52130-52131 E7-18011 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department PROPOSED RULES Environmental regulations; clarification and conforming amendments, 52264-52275 E7-17818 NOTICES Agency information collection activities; proposals, submissions, and approvals, 52161-52163 E7-17903 E7-17904 E7-17906 E7-17908 Industry Industry and Security Bureau RULES Chemical Weapons Convention regulations: 2007 Australia Group Plenary Agreements; implementation, 52000-52003 E7-18018 Interior Interior Department See Land Management Bureau IRS Internal Revenue Service RULES Income taxes:
Foreign and foreign-owned domestic corporations; required information returns; correction, 52003-52004 E7-17820 International International Trade Administration NOTICES Antidumping: Frozen fish fillets from— Vietnam, 52048 E7-17987 Frozen warmwater shrimp— Brazil, 52061-52065 E7-18009 China, 52049-52052 07-4495 Frozen warmwater shrimp from— Ecuador, 52070-52073 E7-18041 India, 52055-52061 E7-18006 Thailand, 52065-52070 E7-18010 Vietnam, 52052-52055 E7-17991 Helical spring lock washers from— China, 52073-52078 E7-17989 Preserved mushrooms from— China, 52078-52079 E7-17999 Stainless steel bar from— India, 52079 E7-17992 Stainless steel rod from— India, 52079-52083 E7-17993 Wooden bedroom furniture from— China, 52083-52084 E7-17995 *Applications, hearings, determinations, etc.:* Illinois Institute of Technology, 52084 E7-18015 Justice Justice Department NOTICES Pollution control; consent judgments:
BFI Waste Systems of North America, Inc. et al. Correction, 52203 C7-4119 Labor Labor Department See Employee Benefits Security Administration See Labor Statistics Bureau See Wage and Hour Division Labor Labor Statistics Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 52164-52166 E7-17945 Land Land Management Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 52163-52164 07-4474 NIH National Institutes of Health NOTICES Agency information collection activities; proposals, submissions, and approvals, 52153-52155 E7-17986 E7-18012 Meetings:
AIDS Research Office Advisory Council, 52155-52156 07-4480 National Cancer Institute, 52156 07-4481 National Heart, Lung, and Blood Institute, 52156 07-4479 National Institute of Allergy and Infectious Diseases, 52156-52157 07-4478 National Institute of Mental Health, 52158 07-4485 National Institute on Alcohol Abuse and Alcoholism, 52157-52158 07-4482 07-4483 07-4484 NOAA National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 52084-52085 E7-17918 Endangered and threatened species:
Anadromous fish take— Washington; chinook salmon and steelhead, 52085 E7-17985 Meetings: Gulf of Mexico Fishery Management Council, 52085-52086 E7-17949 New England Fishery Management Council, 52086-52087 E7-17948 E7-17950 Nuclear Nuclear Regulatory Commission NOTICES *Applications, hearings, determinations, etc.:* Carolina Power and Light Co., 52167-52169 E7-17971 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 52169 07-4496 Personnel Personnel Management Office NOTICES Allowances and differentials:
Cost of living allowances (nonforeign areas)— Alaska, Hawaii, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands; rate changes, 52169-52181 07-4491 Postal Postal Service PROPOSED RULES Domestic Mail Manual: Postage and fee refunds, 52025-52027 E7-18035 Presidential Presidential Documents ADMINISTRATIVE ORDERS Information sharing environment; assignment of reporting functions (Memorandum of September 8, 2007), 52277-52280 07-4549 RUS Rural Utilities Service NOTICES Environmental statements; notice of intent:
East Texas Electric Cooperative, 52045-52046 E7-17916 E7-17917 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 52181-52182 E7-17940 E7-17941 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 52182-52183 E7-17935 Chicago Board Options Exchange, Inc., 52183-52185 E7-17938 International Securities Exchange, LLC, 52185-52188 E7-17936 E7-17937 E7-17939 New York Stock Exchange LLC, 52188-52191 E7-17947 Philadelphia Stock Exchange, Inc., 52191-52195 E7-17959 E7-17960 E7-17961 State State Department NOTICES Meetings:
Shipping Coordinating Committee, 52195 E7-17981 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 52158-52160 E7-17998 Meetings: Women's Services Advisory Committee, 52160 E7-17951 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.: Boise Cutoff Rail Line, 52197-52198 E7-17730 Thrift Thrift Supervision Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 52198 E7-18030 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service See Thrift Supervision Office Veterans Veterans Affairs Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 52198-52202 E7-17952 E7-17953 E7-17954 E7-17955 E7-17956 E7-17957 Meetings:
Cemeteries and Memorials Advisory Committee, 52202 07-4461 Genomic Medicine Program Advisory Committee, 52202 07-4460 Wage Wage and Hour Division NOTICES Agency information collection activities; proposals, submissions, and approvals, 52166-52167 E7-17891 Separate Parts In This Issue Part II Environmental Protection Agency, 52206-52261 E7-17418 Part III Housing and Urban Development Department, 52264-52275 E7-17818 Part IV Executive Office of the President, Presidential Documents, 52277-52280 07-4549 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 176 Wednesday, September 12, 2007 Rules and Regulations 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. 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 *http://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 *http://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” (§§ 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 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 (§ 301.86) Section 301.86 prohibits the interstate movement of regulated articles from quarantined areas except in accordance with the regulations. Definitions (§ 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 (§ 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 § 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 (§ 301.86-3) Paragraph
(a)of § 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 *http://www.aphis.usda.gov/plant_health/plant_pest_info/potato/pcn.shtml* . The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. 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 § 301.86-3. The regulations also state the conditions under which infested and associated fields will be removed from quarantine in paragraph
(d)of § 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 § 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 § 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 an associated field when PCN host crops, as listed in § 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 § 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 § 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 (§ 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 §§ 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 (§ 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 § 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 § 301.86-5. 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 § 301.86-2(b), must have been grown 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 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 § 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 § 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 § 301.86-5 allows any person who has entered into and is operating under a compliance agreement to issue a certificate or 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 § 301.86-5(a) or (b). Also, § 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 (§ 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 (§ 301.86-7) Section 301.86-7 provides that any person (other than a person authorized to issue certificates or limited permits under § 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 (§ 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 (§ 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, § 305.2 lists approved treatments for pests associated with certain articles regulated in 7 CFR parts 301, 318, and 319. Certain treatments listed in § 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 § 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 § 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 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: *http://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 Production Farm price Table stock processing Idaho Production Farm price Table stock Processing All uses Bingham County, ID Production Farm price Bonneville County, ID Production Farm price 1,000 Cwt. $ per Cwt. 1,000 Cwt. $ per Cwt. 1,000 Cwt. $ per Cwt. 1,000 Cwt. $ per 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 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 Exports ($1,000) Canada Exports ($1,000) Percentage of total Mexico Exports ($1,000) Percentage of total Japan Exports ($1,000) Percentage 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 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. Table 4.—Harvested Acreage and Production of Various Crops in Bonneville County, ID, 2000-2005 Wheat Corn (grain) Corn (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 Source: USDA, NASS, Quick Stats Database, *U.S. and All States County Data—Crops* , October 2006. The eradication program will involve planting cover crops rather than commercial crops for a predetermined amount of time. However, for those producers wishing to participate in the eradication program, APHIS will assume the costs of implementing eradication protocols it determines to be effective, to the extent that funds are available. Impacts of the rule on the domestic market are likely to be small, and the benefits of the quarantine are expected to outweigh the costs. Widespread dissemination of the pest would likely translate into significant economic losses for producers and processors. Left unchecked, PCN attacks the roots of the potato plant, leaching nutrients from the plant itself, which in turn reduces yields, leading to significant declines in production. Additionally, import bans implemented by U.S. trading partners would likely be more widespread and may take longer to remove. The rule may affect domestic producers of potatoes, as well as potato processing firms. It is likely that the entities affected would be small according to Small Business Administration
(SBA)guidelines. A discussion of these impacts follows. Affected U.S. potato producers are expected to be small, based on 2002 Census of Agriculture data and SBA guidelines for entities in the farm category Potato Farming, Field, and Seed Potato Production (North American Industry Classification System [NAICS] code 111211). The SBA classifies producers in this farm category with total annual sales of not more than $750,000 as small entities. APHIS does not have information on the size distribution of the affected producers, but according to 2002 Agriculture Census data, there were a total of 25,017 farms in Idaho in 2002. 5 Of this number, approximately 95 percent had annual sales in 2002 of less than $500,000, which is well below the SBA's small entity threshold of $750,000 for commodity farms. 6 This indicates that the majority of farms are considered small by SBA standards, and it is reasonable to assume that most of the 121 potato farms located in Bingham County, ID, and the 47 potato farms located in Bonneville County, ID, that may be affected by this rule also qualify as small. Potato packing firms classified as NAICS 115114 (Postharvest Crop Activities (except Cotton Ginning)) are considered small if they have not more than $6.5 million in total annual sales. According to the County Business Patterns report for Idaho published by the Census Bureau, there were 30 post-harvest establishments in Idaho in 2002, the latest date for which numbers were published. Of these, two were located in Bingham County, and six were located in Bonneville County. That report does not report the value of total annual sales or the distribution of annual sales for firms in this category. Thus, it is not known what percentage of potato packing firms would be considered small. 5 This number represents the total number of farms in Idaho, including farms producing potatoes. 6 Source: SBA and *2002 Census of Agriculture* . In the case of potato processors, establishments classified within NAICS 311411 (Frozen Fruit, Juice, and Vegetable Manufacturing), NAICS 311423 (Dried and Dehydrated Food Manufacturing), NAICS 311919 (Other Snack Food Manufacturing), and NAICS 311991 (Perishable Prepared Food Manufacturing) with not more than 500 employees are considered small by SBA standards. Data from the Economic Census shows that in 2002, there were a total of 235 frozen fruit, juice, and vegetable manufacturing establishments, including firms manufacturing frozen french fries, in the United States. Of these firms, 215 or 92 percent employed fewer than 500 employees and were, therefore, considered small by SBA standards. There were 181 dried and dehydrated food manufacturing establishments in 2002. Included in this category are manufacturers of dehydrated potato products. There were 176 firms with fewer than 500 employees in this category, accounting for 97 percent of all firms. For other snack food manufacturing establishments, which includes firms manufacturing potato chips, there were 338 establishments in the United States in 2002. Of these establishments, 322 (over 95 percent) had fewer than 500 employees. Firms manufacturing peeled or cut potatoes, included in the perishable prepared food manufacturing category, numbered 610 in 2002. Of these, 603 (99 percent) had no more than 500 employees. 7 Based on this information, it is reasonable to conclude that domestic producers and potato processors that may be affected by the rule are predominantly small entities. 7 Source: SBA and *2002 Economic Census* . Based on the data available to APHIS, benefits to producers outside the regulated area of curtailing the spread of the pest will likely outweigh the costs borne by producers in the affected area. Major importers of fresh potatoes from Idaho, including Canada and Mexico, have lifted their original import prohibitions and now allow imports of fresh potatoes from Idaho subject to certain restrictions, including that the potatoes did not originate from the regulated area. Since the United States exports many more potatoes in the processed form, either as frozen french fries or potato chips, the loss of the fresh markets is not likely to have significant economic impacts on the U.S. potato industry. Additionally, the domestic market would likely be able to absorb any excess supply of fresh potatoes resulting from the import bans imposed by other countries. APHIS welcomes public comment on these potential effects. Description and Estimate of Compliance Requirements Inspection services required to comply with regulations are provided to producers at no cost during regular business hours. Certificates and limited permits required to move regulated articles out of a quarantine area may be obtained without cost from an inspector or person operating under a compliance agreement. Significant Alternatives to Rule Which Accomplish the Stated Objectives and Minimize Any Significant Economic Impacts on Small Entities It is the position of APHIS that there are no alternatives to the interim rule that would satisfactorily accomplish the stated objectives and minimize any significant impacts on small entities. The rule will protect potato producers outside the regulated area from the crop damage and losses that would be incurred if the potato cyst nematode were allowed to spread. 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 In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0322 to the information collection and recordkeeping requirements. We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses:
(1)Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and
(2)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 comments refer to Docket No. APHIS-2006-0143 and send your comments within 60 days of publication of this rule. This interim rule establishes regulations to quarantine part of the State of Idaho because of the PCN and restrict the interstate movement of regulated articles from the quarantined area. In order to move regulated articles interstate from the quarantined area, regulated parties must obtain certificates or limited permits, and they may enter into compliance agreements with APHIS. We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:
(1)Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2)Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 0.2686 hours per response. *Respondents:* Potato producers, packers, processors and handlers. *Estimated annual number of respondents:* 400. *Estimated annual number of responses per respondent:* 7.65. *Estimated annual number of responses:* 3,060. *Estimated total annual burden on respondents:* 822 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects in 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, we are amending 7 CFR parts 301 and 305 as follows: PART 301—DOMESTIC QUARANTINE NOTICES 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). 2. Part 301 is amended by adding a new “Subpart—Potato Cyst Nematode,” §§ 301.86 through 301.86-9, to read as follows: Subpart—Potato Cyst Nematode Sec. 301.86 Restrictions on interstate movement of regulated articles. 301.86-1 Definitions. 301.86-2 Regulated articles. 301.86-3 Quarantined areas. 301.86-4 Conditions governing the interstate movement of regulated articles from quarantined areas. 301.86-5 Issuance and cancellation of certificates and limited permits. 301.86-6 Compliance agreements and cancellation. 301.86-7 Assembly and inspection of regulated articles. 301.86-8 Attachment and disposition of certificates and limited permits. 301.86-9 Costs and charges. Subpart—Potato Cyst Nematode § 301.86 Restrictions on interstate movement of regulated articles. No person may move interstate from any quarantined area any regulated article except in accordance with this subpart. 1 1 Any properly identified inspector is authorized to stop and inspect persons and means of conveyance and to seize, quarantine, treat, apply other remedial measures to, destroy, or otherwise dispose of regulated articles as provided in section 414 of the Plant Protection Act (7 U.S.C. 7714). § 301.86-1 Definitions. *Administrator.* The Administrator, Animal and Plant Health Inspection Service, or any person authorized to act for the Administrator. *Animal and Plant Health Inspection Service.* The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture. *Associated field.* A field that has been found to be at risk for infestation with potato cyst nematode in accordance with § 301.86-3(c)(2). *Certificate.* A document in which an inspector or person operating under a compliance agreement affirms that a specified regulated article is free of potato cyst nematode and may be moved interstate to any destination. *Compliance agreement.* A written agreement between APHIS and a person engaged in growing, handling, or moving regulated articles, wherein the person agrees to comply with this subpart. *Departmental permit.* A document issued by the Administrator in which he or she affirms that interstate movement of the regulated article identified on the document is for scientific or experimental purposes and that the regulated article is eligible for interstate movement in accordance with § 301.86-4. *Field.* A defined production site that is managed separately from surrounding areas for phytosanitary purposes. *Infestation (infested).* The presence of the potato cyst nematode or the existence of circumstances that makes it reasonable to believe that the potato cyst nematode is present. *Infested field.* A field that has been found to be infested with potato cyst nematode in accordance with § 301.86-3(c)(1). *Inspector.* Any employee of APHIS or other person authorized by the Administrator to perform the duties required under this subpart. *Interstate.* From any State into or through any other State. *Limited permit.* A document in which an inspector or person operating under a compliance agreement affirms that the regulated article identified on the document is eligible for interstate movement in accordance with § 301.86-5(b) only to a specified destination and only in accordance with specified conditions. *Moved (move, movement).* Shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried. *Nursery stock.* Living plants and plant parts intended to be planted, to remain planted, or to be replanted. *Person.* Any association, company, corporation, firm, individual, joint stock company, partnership, society, or other entity. *Plant Protection and Quarantine.* The Plant Protection and Quarantine program of the Animal and Plant Health Inspection Service, United States Department of Agriculture. *Potato cyst nematode.* The potato cyst nematode ( *Globodera pallida* ), in any stage of development. *Quarantined area.* Any State or portion of a State designated as a quarantined area in accordance with the provisions in § 301.86-3. *Regulated article.* Any article listed in § 301.86-2 or otherwise designated as a regulated article in accordance with § 301.86-2(i). *State.* The District of Columbia, Puerto Rico, the Northern Mariana Islands, or any State, territory, or possession of the United States. § 301.86-2 Regulated articles. The following are regulated articles:
(a)Potato cyst nematodes. 2 2 Permit and other requirements for the interstate movement of potato cyst nematodes are contained in part 330 of this chapter.
(b)The following potato cyst nematode host crops: Eggplant ( *Solanum melongena* L.) Pepper ( *Capsicum* spp.) Potato ( *Solanum tuberosum* L.) Tomatillo ( *Physalis philadelphica* ) Tomato ( *Lycopersicon esculentum* L.)
(c)Root crops.
(d)Garden and dry beans ( *Phaseolus* spp.) and peas ( *Pisum* spp.).
(e)All nursery stock.
(f)Soil, compost, humus, muck, peat, and manure, and products on or in which soil is commonly found, including grass sod and plant litter.
(g)Hay, straw, and fodder.
(h)Any equipment or conveyance used in an infested or associated field that can carry soil if moved out of the field.
(i)Any other product, article, or means of conveyance not listed in paragraphs
(a)through
(h)of this section 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 this subpart. § 301.86-3 Quarantined areas.
(a)*Designation of quarantined areas.* In accordance with the criteria listed in paragraph
(c)of this section, the Administrator will designate as a quarantined area each field that has been found to be infested with potato cyst nematode, 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. The Administrator will publish the description of the quarantined area on the Plant Protection and Quarantine Web site, *http://www.aphis.usda.gov/plant_health/plant_pest_info/potato/pcn.shtml* . The description of the quarantined area will include the date the description was last updated and a description of the changes that have been made to the quarantined area. 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.
(b)*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:
(1)The State has adopted and is enforcing restrictions on the intrastate movement of the regulated articles that are equivalent to those imposed by this subpart on the interstate movement of regulated articles; and
(2)The designation of less than the entire State as a quarantined area will prevent the interstate spread of the potato cyst nematode.
(c)*Criteria for designation of fields as infested fields and associated fields.*
(1)*Infested fields.* The Administrator will designate a field as an infested field when a potato cyst nematode is found in the field.
(2)*Associated fields.* The Administrator will designate a field as an associated field when potato cyst nematode host crops, as listed in § 301.86-2(b), have been grown in the field in the last 10 years and
(i)The field shares a border with an infested field; or
(ii)The field came into contact with a regulated article listed in § 301.86-2 from an infested field within the last 10 years; or
(iii)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 the potato cyst nematode, as determined by the Administrator.
(d)*Removal of fields from quarantine* —(1) *Infested fields.* 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.
(2)*Associated fields.* An associated field will be removed from quarantine when the field has been found to be free of potato cyst nematode according to a survey protocol approved by the Administrator as sufficient to support removal from quarantine.
(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. § 301.86-4 Conditions governing the interstate movement of regulated articles from quarantined areas.
(a)Any regulated article may be moved interstate from a quarantined area only if moved under the following conditions:
(1)With a certificate or limited permit issued and attached in accordance with §§ 301.86-5 and 301.86-8;
(2)Without a certificate or limited permit if:
(i)The regulated article is moved by the United States Department of Agriculture for experimental or scientific purposes; or
(ii)The regulated article originates outside the quarantined area and is moved interstate through the quarantined area under the following conditions:
(A)The points of origin and destination are indicated on a waybill accompanying the regulated article; and
(B)The regulated article is moved through the quarantined area without stopping (except for refueling and for traffic conditions such as traffic lights and stop signs); and
(C)The regulated article is not unpacked or unloaded in the quarantined area; and
(D)The article has not been combined or commingled with other articles so as to lose its individual identity.
(b)When an inspector has probable cause to believe a person or means of conveyance is moving a regulated article interstate, the inspector is authorized to stop the person or means of conveyance to determine whether a regulated article is present and to inspect the regulated article. Articles found to be infested by an inspector, and articles not in compliance with the regulations in this subpart, may be seized, quarantined, treated, subjected to other remedial measures, destroyed, or otherwise disposed of. § 301.86-5 Issuance and cancellation of certificates and limited permits.
(a)*Certificates.* An inspector 3 or person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article if the inspector determines that the regulated article satisfies the general requirements for a certificate in paragraph (a)(1) of this section and any requirements that may apply to the regulated article under paragraphs (a)(2) through (a)(7) of this section. 3 Inspectors are assigned to local offices of APHIS, which are listed in local telephone directories. Information concerning such local offices may also be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Domestic and Emergency Operations, 4700 River Road Unit 134, Riverdale, Maryland 20737-1236.
(1)*Certification requirements for all regulated articles.* The regulated article 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) 4 to prevent the spread of the potato cyst nematode. In addition, the regulated article must be eligible for unrestricted movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article. 4 Section 414 of the Plant Protection Act (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.
(2)*Certification requirements for nursery stock.* —(i) *Potatoes.* Potatoes intended for use as nursery stock (i.e., seed potatoes) are prohibited from being moved interstate from the quarantined area.
(ii)*Nursery stock of other host crops.* An inspector may issue a certificate for the interstate movement of nursery stock of potato cyst nematode host crops other than potatoes, as listed in § 301.86-2(b), if the nursery stock was grown in a field that meets the following requirements:
(A)The field has been surveyed by an inspector for potato cyst nematode at least once in the last 3 years;
(B)The potato cyst nematode has not been found in the field; and
(C)No more than one potato cyst nematode host crop, as listed in § 301.86-2(b), has been grown in the last 3 years.
(iii)*Nursery stock of non-host crops* —(A) *With soil.* An inspector may issue a certificate for the interstate movement of nursery stock of non-host crops moved with soil if the nursery stock was grown in a field that meets the following requirements: ( *1* ) The field has been surveyed by an inspector for potato cyst nematode at least once in the last 3 years; ( *2* ) The potato cyst nematode has not been found in the field; and ( *3* ) No more than one potato cyst nematode host crop, as listed in § 301.86-2(b), has been grown in the field in the last 3 years.
(B)*Without soil (bare-rooted* ). An inspector may issue a certificate for the interstate movement of nursery stock of non-host crops moved without soil if the inspector finds the nursery stock to be free of soil on its roots and on all other parts of the plant.
(3)*Certification requirements for potatoes and root crops for consumption.* 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 were grown meets the following requirements:
(i)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;
(ii)PCN has not been found in the field; and
(iii)No more than one PCN host crop has been grown in the field in the last 3 years.
(4)*Certification requirements for soil and associated products.* An inspector may issue a certificate for the interstate movement of a regulated article listed in § 301.86-2(e) only if the article originated in a field that meets the following requirements:
(i)The field has been surveyed by an inspector for potato cyst nematode at least once in the last 3 years;
(ii)The potato cyst nematode has not been found in the field; and
(iii)No more than one potato cyst nematode host crop, as listed in § 301.86-2(b), has been grown in the last 3 years.
(5)*Certification requirements for hay, straw, and fodder.* An inspector may issue a certificate for the movement of hay, straw, or fodder from the quarantined area only if:
(i)The field where the hay, straw, or fodder was produced meets the following requirements:
(A)The field has been surveyed by an inspector for potato cyst nematode at least once in the last 3 years;
(B)The potato cyst nematode has not been found in the field; and
(C)No more than one potato cyst nematode host crop, as listed in § 301.86-2(b), has been grown in the field in the last 3 years; or
(ii)The hay, straw, or fodder is produced according to procedures judged by an inspector to be sufficient to isolate it from soil throughout its production.
(6)*Certification requirements for 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 can 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 part 305 of this chapter.
(b)*Limited permits* —(1) *General conditions.* An inspector 5 may issue a limited permit for the interstate movement of a regulated article if the inspector determines that: 5 See footnote 3 to § 301.86-5(a).
(i)The regulated article is to be moved interstate to a specified destination for specified handling, processing, or utilization (the destination and other conditions to be listed in the limited permit), and this interstate movement will not result in the spread of the potato cyst nematode because life stages of the potato cyst nematode will be destroyed by the specified handling, processing, or utilization;
(ii)The regulated article is to 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 the potato cyst nematode; and
(iii)The regulated article is eligible for interstate movement under all other Federal domestic plant quarantines and regulations applicable to the regulated article.
(2)*Specific conditions for potatoes for consumption.* An inspector may issue a limited permit to allow the interstate movement of potatoes from the quarantined area for processing or packing only if:
(i)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
(ii)The potatoes are processed or packed at facilities that handle potatoes, waste, and waste water in a manner approved by APHIS to prevent the spread of potato cyst nematode.
(c)Certificates and limited permits for the interstate movement of regulated articles may be issued by an inspector or person operating under a compliance agreement. A person operating under a compliance agreement may issue a certificate for the interstate movement of a regulated article after an inspector has determined that the regulated article is eligible for a certificate in accordance with paragraph
(a)of this section. A person operating under a compliance agreement may issue a limited permit for interstate movement of a regulated article after an inspector has determined that the regulated article is eligible for a limited permit in accordance with paragraph
(b)of this section.
(d)Any certificate or limited permit that has been issued may be withdrawn, either orally or in writing, by an inspector if he or she determines that the holder of the certificate or limited permit has not complied with all provisions in this subpart for the use of the certificate or limited permit or has not complied with all the conditions contained in the certificate or limited permit. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal will be confirmed in writing as promptly as circumstances allow. Any person whose certificate or limited permit has been withdrawn may appeal the decision in writing to the Administrator within 10 days after receiving the written notification of the withdrawal. The appeal must state all of the facts and reasons upon which the person relies to show that the certificate or limited permit was wrongfully withdrawn. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator. (Approved by the Office of Management and Budget under control number 0579-0322) § 301.86-6 Compliance agreements and cancellation.
(a)Any person engaged in growing, handling, or moving regulated articles may enter into a compliance agreement when an inspector determines that the person is aware of this subpart, agrees to comply with its provisions, and agrees to comply with all the provisions contained in the compliance agreement. 6 6 Compliance agreement forms are available without charge from local Plant Protection and Quarantine offices, which are listed in telephone directories.
(b)Any compliance agreement may be canceled, either orally or in writing, by an inspector whenever the inspector finds that the person who has entered into the compliance agreement has failed to comply with any of the provisions of this subpart. If the cancellation is oral, the cancellation and the reasons for the cancellation will be confirmed in writing as promptly as circumstances allow. Any person whose compliance agreement has been canceled may appeal the decision, in writing, to the Administrator, within 10 days after receiving written notification of the cancellation. The appeal must state all of the facts and reasons upon which the person relies to show that the compliance agreement was wrongfully canceled. As promptly as circumstances allow, the Administrator will grant or deny the appeal, in writing, stating the reasons for the decision. A hearing will be held to resolve any conflict as to any material fact. Rules of practice concerning a hearing will be adopted by the Administrator. § 301.86-7 Assembly and inspection of regulated articles.
(a)Any person (other than a person authorized to issue certificates or limited permits under § 301.86-5(c)) who desires a certificate or limited permit to move a regulated article interstate must notify an inspector 7 as far in advance of the desired interstate movement as possible, but no less than 48 hours before the desired interstate movement. 7 See footnote 3 to § 301.86-5(a).
(b)The regulated article must be assembled at the place and in the manner the inspector designates as necessary to comply with this subpart. § 301.86-8 Attachment and disposition of certificates and limited permits.
(a)A certificate or limited permit required for the interstate movement of a regulated article must, at all times during the interstate movement, be:
(1)Attached to the outside of the container containing the regulated article; or
(2)Attached to the regulated article itself if not in a container; or
(3)Attached to the consignee's copy of the accompanying waybill. If the certificate or limited permit is attached to the consignee's copy of the waybill, the regulated article must be sufficiently described on the certificate or limited permit and on the waybill to identify the regulated article.
(b)The certificate or limited permit for the interstate movement of a regulated article must be furnished by the carrier or the carrier's representative to the consignee listed on the certificate or limited permit upon arrival at the location provided on the certificate or limited permit. (Approved by the Office of Management and Budget under control number 0579-0322) § 301.86-9 Costs and charges. The services of the inspector during normal business hours (8 a.m. to 4:30 p.m., Monday through Friday, except holidays) will be furnished without cost. 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. PART 305—PHYTOSANITARY TREATMENTS 3. The authority citation for 7 CFR part 305 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 4. In § 305.2, in the table in paragraph (g), the entries for “Automobiles” and “Construction equipment without cabs”; the first entry for “Used farm equipment with cabs”; and the entries for “Used farm equipment without cabs” and “Used containers” are revised to read as follows: § 305.2 Approved treatments.
(g)* * * Article Pest Treatment * * * * * * * Automobiles *Globodera rostochiensis* and *G. pallida* T406-c, steam cleaning: Steam at high pressure until all soil is removed. Treated surfaces must be thoroughly wet and heated. Construction equipment without cabs *G. rostochiensis* and *G. pallida* SS T-406d. * * * * * * * Used farm equipment with cabs *G. rostochiensis* and *G. pallida* T406-c, steam cleaning: Steam at high pressure until all soil is removed. Treated surfaces must be thoroughly wet and heated. * * * * * * * Used farm equipment without cabs *G. rostochiensis* and *G. pallida* SS T-406d. Used containers *G. rostochiensis* and *G. pallida* SS T-406d. Done in Washington, DC, this 5th day of September 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-17842 Filed 9-11-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Farm Service Agency 7 CFR Part 770 RIN 0560-AG87 Indian Tribal Land Acquisition Program Loan Writedowns AGENCY: Farm Service Agency, USDA. ACTION: Final rule. SUMMARY: This rule revises the Farm Service Agency
(FSA)Indian Tribal Land Acquisition Program (ITLAP) regulations as required by the Native American Technical Corrections Act of 2006. The regulations pertaining to rental value write-down of ITLAP loans will not require a market value rent study where the land is actually rented. The actual rents received shall be used to determine the rental value of the property for write-down purposes. DATES: *Effective Date:* October 12, 2007. FOR FURTHER INFORMATION CONTACT: Mel Thompson, Senior Loan Officer, Farm Service Agency; telephone: 202-720-7862; Facsimile: 202-690-1196; E-mail: *mel_thompson@wdc.usda.gov.* Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: Discussion of the Final Rule This rule revises the write-down servicing regulations of the Farm Service Agency's
(FSA)Indian Tribal Land Acquisition Loan Program (ITLAP) to comply with section 203 of the Native American Technical Corrections Act of 2006, Public Law 109-221 (25 U.S.C. 494a) (“NATCA”). A. Background ITLAP loans assist Native American tribes or tribal corporations with the acquisition of land interests within the tribal reservation or in an Alaskan community as set out in 7 CFR part 770. Loan funds may be used to acquire land, land interests and appurtenances which will be used for the benefit of the tribe or its members, pay costs for loan closing, and refinance non-USDA debts the applicant incurred to purchase the land in certain situations. During the life of the ITLAP loan the borrower has a number of servicing options available based on changes in their loan status. The servicing options available depend on each borrower's circumstances and can include reamortization, consolidation, interest rate reduction, deferral, land exchanges, debt writedown, release of reserve accounts, or a combination thereof. B. Writedown Requirements Under 7 CFR 770.10(e) the Agency may reduce the unpaid principal and interest on an ITLAP loan based, in part, on the land sale value or rental value of the ITLAP property. The option used is as requested by the borrower or, if it requests both, the write-down is based on which option provides the greatest debt reduction. To be eligible for either writedown option the borrower must be in a persistent poverty county, have a per capita income for individual enrolled tribal members of less than 50 percent of the Federal poverty income rate, and have a tribal unemployment rate in excess of 50 percent. In a rental value write-down, FSA reduces the unpaid principal and interest on the loan approved for the writedown so that the annual loan payment for the remaining term of each loan equals the average of annual rental value of the land purchased with the loan. The rental value writedown option was provided along with a few other changes to ITLAP regulations in a final rule published on February 11, 2005 (70 FR 7165). For determining the value of the property, that rule replaced the requirement for a full appraisal (i.e., combining comparable sales, income, and cost approaches) with a requirement for a study of the rental income of properties similar to and near the land purchased with ITLAP funds. See 7 CFR 770.2 and 770.10(e)(4). C. Changes Required by the NATCA Section 203 of the NATCA (effective May 12, 2006) provides: Notwithstanding any other provision of law, any actual rental proceeds from the lease of land acquired under * * * [ITLAP program authority] (25 U.S.C. 488) certified by the Secretary of the Interior shall be deemed—
(1)To constitute the rental value of that land; and
(2)To satisfy the requirement for appraisal of that land. Thus, this rule amends the definition of “rental value”, as it pertains to ITLAP, to provide that actual rents received will be used to determine the average rental value and the amount of write-down, rather than market rent, in accordance with the statute. Five years of data will be requested and yield the most reliable average, but the Agency will accept fewer years data if that is all that is available. If no actual rents have been received, then the borrower must provide a 5-year market value rent study. The economic and other effects of this change are difficult to estimate; however, it likely will reduce the borrower's costs, eliminate the time required to complete an appraisal, and reduce FSA's application processing time. On the other hand, the administrative costs to the Government will likely increase due to the change in calculating the amount of debt to be forgiven by rental value write-down. D. Summary of Economic Impacts Under the new write-down rules required under Section 203 of the NATCA, ITLAP borrowers will be able to use a 5-year average of actual rental income received on the land purchased with the ITLAP loan to determine any write-down amount requested. This provision increases the likelihood that principal and accrued interest write-downs will occur in the program and that higher ITLAP loan subsidy rates will follow. FSA estimates that a total of 3 current ITLAP borrowers will meet the new write-down criteria and the estimated costs of this rule are based upon the assumption that all 3 borrowers are likely to take advantage of the lower standards imposed by NATCA. These 3 borrowers owe approximately $20 million on loans that originally totaled $31 million. FSA estimates the taxpayer costs will increase by as much as $5 million as a result of write-downs to these 3 borrowers. Furthermore, future taxpayer costs are expected to increase slightly as a result of higher subsidy costs resulting from higher loan losses. Notice and Comment The notice and comment provisions of 5 U.S.C. 553 and the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804), relating to notices of proposed rulemaking and public participation in rulemaking, provide that certain rules may go forward without public notice and comment when they are in the public interest. This regulation adopts changes mandated in the NATCA Section 203. Accordingly, this rule is published without requesting public comment and will be effective 30 days after publication in the **Federal Register** . Executive Order 12866 This rule has been determined under Executive Order 12866 to be significant and was reviewed by the Office of Management and Budget. Regulatory Flexibility Act In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, the Agency has determined that there will be no significant economic impact on a substantial number of small entities. There are currently 24 ITLAP borrowers with 105 loans totaling $52 million. However, only about four are likely to be affected by this rule. The RFA requires agencies to consider the impact of their regulatory proposals on small entities, minimize small entity impacts, and provide their analyses for public comment. This rule affects Indian Tribes, and such Tribes are not small businesses as defined by and subject to the Regulatory Flexibility Act. Nevertheless, this rule provides a substantial reduction in cost to Tribes applying for debt write-down. Thus, to the extent an Indian Tribe may be affected by this rule, there are no negative impacts. Environmental Evaluation The environmental impacts of this rule have been considered consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 *et seq.* , the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR part 1940, subpart G. FSA has determined that this rule will not have a significant impact on the human or natural environment and therefore requires no further environmental review. Executive Order 12988 This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with that Executive Order:
(1)All State and local laws and regulations that are in conflict with this rule will be preempted;
(2)no retroactive effect will be given to this rule; and
(3)administrative proceedings in accordance with 7 CFR parts 11 and 780 must be exhausted before requesting judicial review. Executive Order 12372 As stated in the Notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs and activities within this rule do not require consultation with state and local officials under the scope of Executive Order 12372. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments or the private sector of expenditures of $100 million or more in any one year. This rule contains no Federal mandates, as defined by title II of the UMRA; therefore, this rule is not subject to sections 202 and 205 of the UMRA. Executive Order 13132 The policies contained in this rule do not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on state and local governments. Paperwork Reduction Act The information collections were previously approved under OMB control number 0560-0198, but the package was retired since there are less than ten respondents annually and the collections are, therefore, not subject to the Paperwork Burden Act. The number of estimated annual respondents is not increased by this rule. Federal Assistance Program The changes affect the following program listed in the Catalog of Federal Domestic Assistance: 10.421—Indian Tribes and Tribal Corporation Loans. List of Subjects in 7 CFR Part 770 Agriculture, Credit, Indians, Rural areas, Loan programs. Accordingly, for the reasons stated in the preamble, 7 CFR part 770 is amended as follows: PART 770—INDIAN TRIBAL LAND ACQUISITION LOANS 1. The authority citation for part 770 is revised to read as follows: Authority: 5 U.S.C. 301, 25 U.S.C. 488. 2. Amend § 770.2 by revising the definition of “rental value” in paragraph
(b)to read as follows: § 770.2 Abbreviations and definitions.
(b)* * * *Rental value* for the purpose of rental value write-downs, equals the average actual rental proceeds received from the lease of land acquired under ITLAP. If there are no rental proceeds, then rental value will be based on market data according to § 770.10(e)(4). 3. Amend § 770.10 by revising paragraph (e)(4)(iii) to read as follows: § 770.10 Servicing.
(e)* * *
(4)* * *
(iii)The borrower provides a record of any actual rents received for the land for the preceding 5 years, which will be used to calculate the average rental value. This record must be certified by the Department of the Interior. For land that has not been leased or has not received any rental income, the borrower must provide a market value rent study report for the preceding 5 years, which identifies the average annual rental value based on the market data. The market value rent study report must be prepared by a certified general appraiser and meet the requirements of USPAP. Signed in Washington, DC, on September 6, 2007. Teresa C. Lasseter, Administrator, Farm Service Agency. [FR Doc. E7-18032 Filed 9-11-07; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 981 [Docket No. AMS-FV-07-0051; FV07-981-2 FR] Almonds Grown in California; Change in Requirements for Interhandler Transfers of Almonds AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule revises the requirements for interhandler transfers of almonds under the administrative rules and regulations of the California almond marketing order (order). The order regulates the handling of almonds grown in California and is administered locally by the Almond Board of California (Board). This rule requires handlers who transfer almonds to other handlers to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in *Salmonella* bacteria ( *Salmonella* ). This action will help the Board track treated and untreated almonds and facilitate administration of its mandatory *Salmonella* treatment program. DATES: *Effective Date:* September 13, 2007. FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Assistant Regional Manager, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Telephone:
(559)487-5901, Fax:
(559)487-5906, or E-mail: *Maureen.Pello@usda.gov,* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture
(USDA)is issuing this rule in conformance with Executive Order 12866. This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This final rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This final rule revises the requirements for interhandler transfers of almonds under the administrative rules and regulations of the order. This rule require handlers who transfer almonds to other handlers to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in *Salmonella.* A mandatory treatment program to reduce the potential for *Salmonella* in almonds took effect in September 2007. This action will enable the Board to track treated and untreated almonds and help facilitate administration of its mandatory treatment program. This action was unanimously recommended by the Board at a meeting on March 28, 2007. Section 981.55 of the order provides authority for handlers to, upon notice to and under supervision of the Board, transfer almonds to another handler. Marketing order obligations regarding volume regulation, when in effect, and assessments must be fully met and may be divided between the participating handlers. Section 981.455 requires handlers to report to the Board on ABC Form No. 7, “Interhandler Transfer of Almonds,” information regarding interhandler transfers. Paragraph
(a)of that section currently requires the following information:
(1)Date of transfer;
(2)the names and plant locations of both the transferring and receiving handlers;
(3)the variety of almonds transferred;
(4)whether the almonds are shelled or unshelled; and
(5)the name of the handler assuming reserve and assessment obligations on the almonds transferred. In August 2006, the Board recommended a mandatory treatment program to reduce the potential for *Salmonella* in almonds. USDA engaged in informal rulemaking to implement the program. A final rule was published on March 30, 2007 (61 FR 15021). Beginning in September 2007, handlers must subject their almonds to a process that achieves a 4-log reduction in *Salmonella* prior to shipment. The program exempts untreated almonds that are shipped to manufacturers in the U.S., Canada, and Mexico who agree to treat the almonds and untreated almonds that are shipped outside the U.S., Canada, and Mexico. To help track treated and untreated almonds, the Board met in March 2007 and recommended revising the order's administrative rules and regulations to require handlers to report to the Board whether or not almonds transferred to other handlers were treated under the mandatory treatment program. Handlers must include an identification number for each lot transferred. This number may be a contract number or other unique handler number that can identify the lot. Under the mandatory *Salmonella* treatment program, handler records must provide the ability to differentiate treated from untreated almonds (§ 981.442(b)(5)). Requiring handlers to provide lot identification numbers on their interhandler transfer forms complements this requirement. These changes to the interhandler transfer requirements will help facilitate administration of the mandatory *Salmonella* treatment program. Paragraph
(a)in § 981.455 is revised accordingly. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 6,000 producers of almonds in the production area and approximately 110 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. Data for the most recently completed crop year indicate that about 52 percent of the handlers shipped under $6,500,000 worth of almonds. Dividing the average almond crop values for 2003-04, 2004-05, and 2005-06 as reported by the National Agricultural Statistics Service ($2.105 billion) by the number of producers (6,000) yields an average annual producer revenue estimate of about $350,000. Based on the foregoing, about half of the handlers and a majority of almond producers may be classified as small entities. This rule revises § 981.455(a) of the order's administrative rules and regulations to require handlers who transfer almonds to other handlers to report to the Board whether or not the almonds were treated to achieve a 4-log reduction in *Salmonella* . A mandatory treatment program to reduce the potential for *Salmonella* in almonds took effect in September 2007. This action will help the Board track treated and untreated almonds and help ensure the integrity of its mandatory program. Authority for this change is provided in §§ 981.55 of the order. Regarding the impact of this action on affected entities, it merely requires handlers who transfer almonds to other handlers to indicate on ABC Form No. 7, “Interhandler Transfer of Almonds,” whether or not the almonds were treated to achieve a 4-log reduction in *Salmonella* . Handlers must also include a lot identification number for each lot transferred. Regarding alternatives to this action, the Board considered not requiring handlers to report whether their transferred almonds were treated to achieve a 4-log reduction in *Salmonella* . However, this would not allow the Board to track treated and untreated almonds. Thus, the Board unanimously recommended revising the requirements regarding interhandler transfers of almonds. This action slightly modifies the reporting requirements for all California almond handlers. All handlers must currently report their interhandler transfers to the Board on ABC Form No. 7, “Interhandler Transfer of Almonds.” This form had been approved by the Office of Management and Budget
(OMB)under OMB No. 0581-0178, Vegetable and Specialty Crops. This rule requires that two extra columns be added to this form. One column allows handlers to indicate whether or not the transferred almonds were treated to achieve a 4-log reduction in *Salmonella* . The second column provides for inclusion of a lot identification number for tracking purposes. In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35), the revised form has been submitted to the OMB for approval. Once approved, this information collection will be merged into OMB No. 0581-0178. It is estimated that it will take a handler about 0.5 hour per response, and that 50 handlers will respond and submit the form five times per year. Thus, the total annual reporting burden for the form is estimated at 125 hours per year. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by the industry and public sector agencies. Additionally, the meetings were widely publicized throughout the California almond industry and all interested persons were invited to attend the meetings and participate in deliberations on all issues. The Board's Food Quality and Safety Committee discussed this issue on January 30, 2007. The committee recommended the change to the Board on March 28, 2007. Both of these meetings were public meetings and all entities, both large and small, were able to express views on this issue. A proposed rule concerning this action was published in the **Federal Register** on June 8, 2007 (72 FR 31759). Copies of the rule were also mailed or sent via facsimile to all almond handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending August 7, 2007, was provided for interested persons to respond to the proposal. One comment was received during the comment period in response to the proposal. The commenter asked if the same rules and safeguards apply to almonds imported from other countries. Almonds are not listed in section 8e of Act. Thus, imported almonds are not subject to comparable quality requirements as those in effect for the domestic commodity. Accordingly, no changes will be made to the rule as proposed, based on the comment received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant matters presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** (5 U.S.C. 553) because mandatory compliance with the *Salmonella* treatment program began September 1, 2007, and this rule should be in place as soon as possible so the Board can track treated and untreated almonds. Further, handlers are aware of this action, which was unanimously recommended at a public meeting. Also, a 60-day comment period was provided for in the proposed rule, and the comment received was addressed herein. List of Subjects in 7 CFR Part 981 Almonds, Marketing agreements, Nuts, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 981 is amended as follows: PART 981—ALMONDS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 981 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 981.455 is amended by revising paragraph
(a)to read as follows: § 981.455 Interhandler transfers.
(a)*Transfers of almonds.* Interhandler transfers of almonds pursuant to § 981.55 shall be reported to the Board on ABC Form 7. The report shall contain the following information:
(1)Date of transfer;
(2)The names, and plant locations of both the transferring and receiving handlers;
(3)The variety of almonds transferred;
(4)Whether the almonds are shelled or unshelled;
(5)The name of the handler assuming reserve and assessment obligations on the almonds transferred;
(6)Whether the almonds had been treated to achieve a 4-log reduction in *Salmonella* bacteria, pursuant to § 981.442(b); and
(7)A unique handler identification number for each lot. Dated: September 7, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 07-4490 Filed 9-10-07; 10:05 am]
Connectionstraces to 16
16 references not yet in our index
  • 7 CFR 301
  • 7 CFR 305
  • 7 CFR 3015
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • Pub. L. 106-113
  • Pub. L. 106-224
  • 114 Stat. 400
  • 7 CFR 770
  • Pub. L. 109-221
  • 7 CFR 770.10(e)
  • 7 CFR 770.2
  • 7 CFR 1940
  • Pub. L. 104-4
  • 7 CFR 981
  • 7 USC 601-674
Citation graph
cites case law
Unknown
Interim rule and request for comments
U.S.C.§ 7714
U.S.C.§ 553
Fed. Reg.Notices
U.S.C.§ 7701
Fed. Reg.Notices
Fed. Reg.Notices
U.S.C.§ 3501
U.S.C.§ 1421
U.S.C.§ 136
Cite7 CFR 301
Cite7 CFR 305
Cite7 CFR 3015
Cites 32 · showing 12Cited by 0 across 0 sources
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