AAM-44-14-00004-P Host Materials (Potatoes, Tomatoes and Eggplants) and Soil

11/5/14 N.Y. St. Reg. AAM-44-14-00004-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 44

November 05, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAM-44-14-00004-P

Host Materials (Potatoes, Tomatoes and Eggplants) and Soil

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 127.2 of Title 1 NYCRR.

Statutory authority:

Agriculture and Markets Law, sections 18, 164 and 167

Subject:

Host materials (potatoes, tomatoes and eggplants) and soil.

Purpose:

To lift the golden nematode quarantine in portions of Nassau, Suffolk and Orleans Counties.

Substance of proposed rule (Full text is not posted on a State website):

The proposed amendments to section 127.2 of 1 NYCRR lift the golden nematode quarantine in all of Nassau County, except for portions of the Town of Oyster Bay. The amendments also lift the quarantine in all of Suffolk County, except for the Towns of Riverhead, East Hampton, Southampton, Southold and Shelter Island and portions of the Towns of Huntington and Brookhaven. Finally, the amendments lift the quarantine in the Town of Clarendon and portions of the Town of Barre in Orleans County.

Text of proposed rule and any required statements and analyses may be obtained from:

Christopher A. Logue, Director, Division of Plant Industry, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, [phone]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

60 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Section 18 of the Agriculture and Markets Law (AML) provides, in part, that the Commissioner may enact, amend and repeal necessary rules which shall provide generally for the exercise of the powers and performance of the duties of the Department as prescribed in the Agriculture and Markets Law and the laws of the State and for the enforcement of their provisions and the provisions of the rules that have been enacted.

AML Section 164 provides, in part, that the Commissioner shall take such action as he may deem necessary to control or eradicate any injurious insects, noxious weeds, or plant diseases existing within the State.

AML Section 167 provides, in part, that the Commissioner is authorized to make, issue, promulgate and enforce such order, by way of quarantines or otherwise, as he may deem necessary or fitting to carry out the purposes of AML Article 14, Prevention and Control of Disease in Trees and Plants; Insect Pests; Sale of Fruit-bearing Trees. Section 167 also provides that the Commissioner may adopt and promulgate such rules and regulations to supplement and give full effect to the provisions of AML Article 14 as he may deem necessary.

2. Legislative objectives:

The lifting of the quarantine as set forth in the proposed amendments accords with the public policy objectives the Legislature sought to advance by enacting AML Article 14. By lifting the quarantine in portions of Nassau, Suffolk and Orleans Counties, the amendments address changes in circumstances, namely, the eradication of the golden nematode in these areas.

3. Needs and benefits:

The golden nematode, Globodera rostchiensis, non-indigenous to the United State, is a microscopic eelworm, native to Europe. It is one of the world’s most destructive crop pests, which attacks potatoes, tomatoes and eggplants by boring into their roots. The resulting damage by the golden nematode affects the growth and crop yield of the plant and may result in the death of the plant. Once established in the soil, the golden nematode is easily spread to non-infected areas through the movement of the infested plants and infected soil. The golden nematode was discovered in Europe during the 19th century and was first detected in the United States on a potato farm on Long Island in 1941. The pest subsequently spread beyond that farm to other areas on Long Island. The emergence of this pest prompted the establishment of a cooperative federal-state golden nematode control program shortly after the end of World War II. The program was dedicated to the control of the golden nematode and included laboratory analysis, research, survey activities and quarantine enforcement. In 1967, the golden nematode was detected on a farm near the Town of Prattsburg in Steuben County and subsequently spread to parts of Cayuga, Genesee, Livingston, Orleans, Seneca and Wayne Counties. The establishment of federal and state golden nematode quarantines as well as restrictions on the movement of host materials played key roles in preventing the further spread of the golden nematode. As of 2012, the quarantines had effectively confined this pest to 5,984 acres of farmland in Nassau and Suffolk Counties on Long Island and the Counties of Cayuga, Genesee, Livingston, Orleans, Seneca, Steuben and Wayne in western New York State.

This rule amends the golden nematode quarantine in section 127.2 of 1 NYCRR by lifting the quarantine in all of Nassau County, except portions of the Town of Oyster Bay; by lifting the quarantine in all of Suffolk County, except in the Towns of Riverhead, East Hampton, Southampton, Southold, Shelter Island and portions of Huntington and Brookhaven; and by lifting the quarantine in all of the Town of Clarendon and a portion of the Town of Barre in Orleans County. Potato, tomato and eggplant fields in these areas have had a sequence of surveys, all of which have proven to be negative for golden nematode. It has also been determined that several of the fields within these quarantined areas have never been used in host crop production. Accordingly, the lifting of the golden nematode quarantine in the areas referenced above will ease regulatory burdens on growers of host crops in those areas without compromising plant health. The United States Department of Agriculture (USDA) is in the process of drafting a federal quarantine which will mirror the State’s amended quarantine, as proposed in the rule making. USDA, however, is awaiting adoption of the State quarantine amendments before adopting its quarantine.

4. Costs:

(a) Costs to regulated parties: The rule will not result in costs to private regulated parties. Regulated parties may realize a profit if they decide to return the fields in the former quarantined areas to host crop production.

(b) Costs to the agency, the State and local government: None. The Department may realize cost savings by no longer inspecting the fields in the former quarantined areas.

(c) Conclusions that the proposed rule would not result in any additional costs is based upon a review of Department inspection protocols and observations of the practices of regulated parties.

5. Local government mandate:

There are no additional programs, services, duties or responsibilities imposed by this rule upon any county, city, town, village, school district, fire district or any other special district.

6. Paperwork:

These amendments will not result in any additional paperwork or electronic reporting.

7. Duplication:

The USDA anticipates adopting a federal quarantine that will duplicate the quarantine proposed in this rule. The duplication would not result in any additional requirements being imposed on any regulated party.

8. Alternatives:

The only alternative considered was to leave the quarantine in place in these areas. This alternative was rejected, since leaving the golden nematode quarantine in place where the pest has not been observed during a sequence of surveys, is inconsistent with existing scientific protocols and imposes an unnecessary burden on regulated parties. In light of this, the only viable alternative is to lift the quarantine in these areas.

9. Federal standards:

The proposed regulations do not exceed any minimum standards for the same or similar subject areas. The USDA is in the process of drafting a federal quarantine which will mirror the State’s amended quarantine. USDA, however, is awaiting adoption of the amended State quarantine before adopting its quarantine.

10. Compliance schedule:

It is anticipated that regulated parties would be able to comply with the rule immediately upon publication of the Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

1. Effect of rule:

This rule amends the golden nematode quarantine in section 127.2 of 1 NYCRR by lifting the quarantine in all of Nassau County, except portions of the Town of Oyster Bay; by lifting the quarantine in all of Suffolk County, except in the Towns of Riverhead, East Hampton, Southampton, Southold, Shelter Island and portions of Huntington and Brookhaven; and by lifting the quarantine in all of the Town of Clarendon and a portion of the Town of Barre in Orleans County.

The lifting of the quarantine in these areas would affect 788 potato and tomato growers, all of whom are small businesses.

It is anticipated that the rule would have no impact on local governments.

2. Compliance requirements:

The rule would not impose any additional compliance requirements on small businesses or local governments.

3. Professional services:

No new professional services would be needed to comply with this rule.

4. Compliance costs:

(a) Initial capital costs that will be incurred by a regulated business or industry or local government in order to comply with the proposed rule: None.

(b) Annual cost for continuing compliance with the proposed rule: None.

It is anticipated that the rule will have no impact on local governments.

5. Economic and technological feasibility:

Compliance with the proposed rule by small businesses and local governments would be economically and technologically feasible because the rule would not impose any additional compliance requirements. Lifting the golden nematode quarantine in the areas referenced above would eliminate a regulatory burden on small businesses in those areas.

It is anticipated that the rule would have no impact on local governments.

6. Minimizing adverse impact:

Since the proposed rule will lift the quarantine in portions of Nassau, Suffolk and Orleans Counties, the rule minimizes adverse impact since regulated parties in those areas would no longer be subject to the quarantine and the requirements applicable to quarantined areas.

It is anticipated that the rule would have no impact on local governments.

7. Small business and local government participation:

Department officials met with four farmers who will remain under quarantine because their farms are located in areas where the quarantine would not be lifted by the proposed rule. Soil samples were taken from each farm, analyzed, and found to be negative for golden nematode. Additional negative samples would be required before the quarantine could be lifted in these areas.

The Department did not engage with any local governments because it is anticipated that the rule would have no impact on local governments.

Rural Area Flexibility Analysis

1. Type and estimated numbers of rural areas:

This rule amends the golden nematode quarantine in section 127.2 of 1 NYCRR by lifting the quarantine in all of Nassau County, except portions of the Town of Oyster Bay; by lifting the quarantine in all of Suffolk County, except in the Towns of Riverhead, East Hampton, Southampton, Southold, Shelter Island and portions of Huntington and Brookhaven; and by lifting the quarantine in all of the Town of Clarendon and a portion of the Town of Barre in Orleans County.

Lifting of the quarantine in these areas would affect 788 potato and tomato growers, all of whom are located in rural areas.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

None. The rule will not impose any reporting, record keeping or other compliance requirements on regulated parties. Further, no new professional services will be needed to comply with the proposal.

3. Costs:

None. There are no new costs as a result of this rule proposal.

4. Minimizing adverse impact:

In conformance with State Administrative Procedure Act section 202-bb(2), the proposed regulations would minimize adverse economic impact on all affected regulated parties, including those in rural areas. By lifting the golden nematode quarantine in the areas referenced above, regulated parties in those areas would no longer be subject to the quarantine and the requirements applicable to the quarantined areas.

5. Rural area participation:

Department officials met with four farmers who would remain under quarantine because their farms are located in areas where the quarantine would not be lifted by the proposed rule. Soil samples were taken from each farm, analyzed, and found to be negative for golden nematode. Additional negative samples would be required before the quarantine could be lifted in these areas.

Job Impact Statement

The proposed amendments would not have a substantial adverse impact on jobs and employment opportunities. The proposed rule amends the golden nematode quarantine in section 127.2 of 1 NYCRR by lifting the quarantine in all of Nassau County, except portions of the Town of Oyster Bay; by lifting the quarantine in all of Suffolk County, except in the Towns of Riverhead, East Hampton, Southampton, Southold, Shelter Island and portions of Huntington and Brookhaven; and by lifting the quarantine in all of the Town of Clarendon and a portion of the Town of Barre in Orleans County. The proposed amendments would relax regulatory burdens on regulated parties. It is estimated that there are 788 potato and tomato producers in these areas, employing approximately 3,343 people. By lifting the quarantine in areas where a sequence of surveys have proven negative for golden nematode, the rule would help to prevent adverse economic consequences to those areas and in so doing, protect the jobs and employment opportunities associated with the production of potatoes, tomatoes and eggplant in New York State.