PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 192 to Title 1 NYCRR.
Statutory authority:
Agriculture and Markets Law, section 160-v
Subject:
Cull onions and potatoes.
Purpose:
To establish proper disposal methods for culls and waste piles of onions and potatoes not produced in New York State.
Text of proposed rule:
PART 192
PROPER DISPOSAL OF CERTAIN AGRICULTURAL PRODUCTS
Section 192.1 Definitions
As used in this Part:
(a) Commissioner means the Commissioner of Agriculture and Markets of the State of New York and any officer or employee of the New York State Department of Agriculture and Markets duly delegated pursuant to section 17 of the Agriculture and Markets Law.
(b) Compliance agreement means an agreement approved by the Commissioner and executed by any establishment as defined in this part that sells, offers for sale or distributes any food product in the State, covering handling and disposal of culls or waste piles of onions or potatoes not produced in New York State.
(c) Cull means onions or potatoes not produced in New York State which fall below the official standard or grade of quality for such product.
(d) Department means the New York State Department of Agriculture and Markets.
(e) Establishment means farms, wholesale packers, re-packers, processors and grower-shippers utilizing raw onions or potatoes not produced in New York State.
(f) Inspector means an inspector of the New York State Department of Agriculture and Markets.
(g) Proper disposal means the method or methods by which culls or waste piles are eliminated in accordance with this Part.
(h) State means the State of New York.
(i) Waste pile means any non-containerized solid, non-flowing waste, consisting entirely or in part of onions or potatoes not produced in New York State that are gathered for proper disposal.
Section 192.2 Proper disposal methods.
The following are proper disposal methods for the elimination of culls or waste piles consisting entirely or in part of onions or potatoes not produced in New York State.
(a) Composting
(1) Composting of culls and waste piles may be done at any time.
(2) Compost piles shall be turned, mixed and otherwise maintained and managed in accordance with prevailing best management practices as established by Cornell University Waste Management Institute or its successors.
(b) Deep burial
(1) The burial of culls and waste piles may be done at any time.
(2) Culls and waste piles shall be buried at a depth of 18 inches below existing grade and shall be covered with a minimum of 18 inches of soil that is free from onions or potatoes to prevent sprouts from emerging. If sprouts begin to emerge additional soil shall be added to stop sprouting.
(3) Culls and waste piles that will not be buried within eight hours of collection for burial shall be covered with canvas, plastic or closely woven cloth to prevent the potential spread of contaminants.
(c) Field spreading
(1) The field spreading of culls and waste piles shall be limited to the period October 1 through March 1.
(2) Culls and waste piles may be spread at a rate of 660 cwt. (66,000 lbs.) per acre on well-drained soil, and 495 cwt. (49,500 lbs.) per acre on moderately-drained soil for the period set forth in paragraph (1) of this subdivision.
(3) The depth of spread material shall not exceed six inches.
(4) Culls and waste piles shall not be spread on fields intended for production of that crop within a period of three years following such spreading.
(5) Fields on which culls and waste piles have been spread shall not be cultivated until after the spread material has completely frozen.
(d) Feeding to livestock
(1) The feeding of culls and waste piles to livestock may be done at any time.
(2) Culls and waste piles that will not be fed to livestock within eight hours of collection shall be covered with canvas, plastic or closely woven cloth to prevent the potential spread of contaminants.
(e) Incineration
(1)The burning of culls and waste piles may done at any time provided it is done in accordance with applicable state and local laws and regulations.
(2) Culls and waste piles may be incinerated in a facility that is permitted for solid waste disposal pursuant to 6 NYCRR Part 360.
(3) Culls and waste piles that will not be burned within eight hours of collection for burning shall be covered with canvas, plastic or closely woven cloth to prevent the potential spread of contaminants.
(f) Return to point of origin
(1) Culls may be returned to the point of origin, provided they are shipped within 30 days of their arrival.
(g) Anaerobic digestion
(1) Culls and waste piles may be used as feedstock for anaerobic digesters providing it is done in accordance with best management practices and all applicable regulations.
(h) Landfill disposal
(1) Culls and waste piles may be disposed of at permitted landfills provided it is done in accordance with all applicable regulations.
Section 192.3 Conditions governing the proper disposal of culls or waste piles
(a) Any establishment, as defined in this part, that disposes of culls or waste piles in accordance with these regulations may, at the discretion of the Department, be subject to inspection of such disposal.
(b) The disposal of culls or waste piles shall be done in accordance with this Part or pursuant to a compliance agreement.
(c) The Department shall not be responsible for any cost incident to inspection and disposal of any culls or waste piles pursuant to this Part, other than the services of the inspector.
Section 192.4 Records
Any establishment, as defined in this part, that sells, offers for sale or distributes any onions or potatoes not produced in New York State shall compile, maintain and make available for inspection, for a period of two years, records of the disposal of culls or waste piles on a form or forms prescribed by the Commissioner.
Text of proposed rule and any required statements and analyses may be obtained from:
Kevin S. King, Director, Division of Plant Industry, New York State Department of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, (518) 457-2087
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Section 160-v of the Agriculture and Markets Law (Law), as added by chapter 668 of the Laws of 2007 and amended by chapter 527 of the Laws of 2010, provides that after consultation with the New York State College of Agriculture and Life Sciences at Cornell University, the Commissioner shall identify establishments and practices most susceptible to threats from out of state agricultural products, and promulgate rules and regulations for the proper disposal of any cull or waste pile of those products.
2. Legislative objectives:
Section 160-v of the Law provides that no person or entity which sells, offers for sale or distributes any food product shall dump, or otherwise discard in a manner reasonably and causally connected to the contamination of food, any cull or waste pile consisting of any agricultural product not produced in New York State. The proposed rule accords with the public policy objectives the Legislature sought to advance by enacting the statutory authority in that it will establish proper disposal methods for culls or waste piles.
3. Needs and benefits:
The proposed rule implements the legislative directive that the Commissioner shall identify establishments and practices most susceptible to threats from out of state agricultural products, and promulgate rules and regulations for the proper disposal of any cull or waste pile of those products.
The statutory authority and this proposed rule are prompted by several disease outbreaks attributed to cull piles, with one recent outbreak in New York State. Onions and potatoes pose the greatest threat.
Onions that fall short of acceptable standards for use are “culled out” at grading and packing facilities. These facilities are often in close proximity to production fields. Exposed cull piles become sources of disease production and propagation of fungi, bacteria, viruses and nematodes. At times, these packaging facilities also accept onions from other states and thus, the movement of material that is subsequently included in the cull pile can lead to the introduction of pathogens previously not known to exist in New York State. In 2006, an outbreak of iris yellow spot virus in onions in New York was attributed to poor disposal of onions. This invasive disease was first discovered in Idaho in 1989. Iris yellow spot virus usually doesn’t kill the plants but rather, reduces plant vigor and bulb size, diminishing the marketability of the afflicted onions. There is no cure for this disease and the plants must be destroyed.
There are approximately 93 onion growers throughout the State. Onions are one of the most important vegetable crops in New York State with annual sales of approximately 54-million dollars. New York produces 97 percent of the onions in the northeastern United States and ranks fifth nationwide in onion production. Approximately 12,000 acres of yellow pungent cooking onions are grown from direct seed, predominantly in organically rich muck soils found in Orange, Oswego, Orleans, Genesee, Madison, Wayne, Yates and Steuben Counties.
In the case of potatoes, there are several potato diseases which are associated with poor disposal of potato culls. Bacterial wilt or brown rot (ralstonia solanacearum) is a quarantined pest in North America. At present, the disease isn’t present in New York State. Bacterial ring rot (Clavibacter michiganensis) does not occur in New York State and the State has zero tolerance for this destructive pathogen. Late blight (Phytophthora infestans) has resulted in widespread infection of potatoes in 2004 and 2009, stemming from poor disposal of potato culls.
Potatoes are of great economic importance to New York State. There are approximately 150 potato growers throughout the State. Potatoes rank number one in economic value among vegetables produced in the State, and are ranked number 12 in the nation with 27,000 acres planted and approximately $60-million in annual sales. Potatoes are grown in most of the vegetable production regions of the State. Areas of significant production include Suffolk County on Long Island; Franklin County in northern New York; Oswego, Steuben, Wayne, Ontario, Oneida and Livingston Counties in central New York; and Erie, Genesee, Monroe, Orleans and Wyoming counties in western New York.
The proposed rule is necessary to avoid further outbreaks of these and other diseases due to poor disposal of cull onions and potatoes. The proposed rule benefits growers and consumers alike. For growers, the proposal would help ensure the health and welfare of their potato and onion crop, thereby helping them to realize the greatest possible return on their crops. For consumers, the proposal would help ensure that consumers are receiving the most wholesome and healthy onions and potatoes possible.
4. Costs:
a. Costs to regulated parties for the implementation of and continuing compliance with the rule:
Regulated parties would have to undertake the costs of disposing of culls. The expense in doing so varies in accordance with the disposal method used and the amount of culls disposed.
b. Costs to the agency, the state and local governments for the implementation and continuation of the rule:
The Department would have to inspect records compiled and maintained by regulated parties regarding the disposal of culls and waste piles. It is anticipated that this task will be able to be undertaken by existing staff, resulting in no additional costs to the Department, State and local governments.
c. The information, including the source(s) of such information and the methodology upon which the cost analysis is based:
Observations of industry.
5. Local government mandates:
This amendment will not impose any program, service, duty, additional cost, or responsibility on any county, city, town, village, school district, fire district, or other special district.
6. Paperwork:
Regulated parties that sell, offer for sale or distributes any onions and potatoes shall compile, maintain and make available for inspection for a period of two years, records of the disposal of culls or waste piles on a form or forms prescribed by the Commissioner.
7. Duplication:
The proposed regulations do not duplicate any State or federal requirements.
8. Alternatives:
Two alternatives were considered. The first was to refrain from proposing this rule. This approach was rejected, insofar as promulgation of the rule is pursuant to a legislative mandate. The second was to include all fruits and vegetables in addition to onions and potatoes. This approach was rejected, following consultation with officials of the New York State College of Agriculture and Life Sciences at Cornell University, who indicated that the most pressing problem is failure to properly dispose of onion and potato culls.
9. Federal standards:
The proposed regulations do not exceed any minimum standards of the federal government.
10. Compliance schedule:
The rule will be effective upon publication of the Notice of Adoption in the State Register.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed rule sets forth requirements for the proper disposal of onion and potato culls. The approved methods are composting, burial, field spreading, feeding to livestock, incineration, anaerobic digestion, landfill disposal and return to the point of origin.
Approximately 150 potato growers and 93 onion growers throughout New York State will be subject to the proposed rule. A small number of these growers deal with out of state onions and potatoes. Most of these growers are small businesses.
It is anticipated that the proposal will not affect local governments.
2. Compliance requirements:
Under the proposal, regulated parties would be required to dispose of onion and potato culls using one or more of the methods set forth above. Regulated parties would also be required to compile, maintain and make available for inspection, for a period of two years, records of the disposal of culls or waste piles on a form or forms prescribed by the Commissioner.
It is anticipated that the proposal will not affect local governments.
3. Professional services:
Regulated parties may employ outside services to dispose of culls and/or compile and maintain the paperwork, but are not required to do so.
It is anticipated that the proposal will not affect local governments.
4. Compliance costs:
Regulated parties would have to undertake the costs of disposing of culls. The expense in doing so varies in accordance with the disposal method used and the amount of culls disposed. Regulated parties are not required to hire an outside consultant to satisfy the recordkeeping requirement, but may do so at additional cost.
It is anticipated that the proposal will not affect local governments.
5. Economic and technological feasibility:
The economic and technological feasibility of compliance with the proposed rule by small businesses and local governments has been addressed and such compliance has been determined to be feasible. The basis for this determination is that proper disposal of culls by growers may be achieved by a number of methods, rendering this requirement feasible. The recordkeeping requirement is merely compiling and maintaining a report for two years on the disposal of culls and waste piles. This can be achieved either through the grower or an outside consultant and as such, is feasible.
It is anticipated that the proposal will not affect local governments.
6. Minimizing adverse impact:
The proposed rule minimizes adverse impact by limiting the regulation to onion and potato culls, rather than culls of all fruits and vegetables. Since the proposal is aimed at the vegetables whose culls pose the greatest health threat to healthy vegetables, the proposed rule limits regulation of only growers of those commodities, thereby eliminating regulatory burden on growers who do not grow those commodities.
It is anticipated that the proposal will not affect local governments.
7. Small business and local government participation:
On May 19, 2008, the Department met with scientists and officials from Cornell University for consultation on the proposed regulations, as required by section 160-v of the Agriculture and Markets Law. On July 2, 2008, scientists and officials provided their recommendations on proposed disposal methods for culls. They also recommended that the regulations be limited to potatoes and onions.
In August and September 2012, the Department conferred with the New York Farm Bureau, which shared the proposed regulations with its members. Neither the Bureau nor its members had any negative feedback.
On November 9, 2012, the Department met with the Empire Potato Growers Association in Syracuse to discuss the proposed regulations. The potato growers supported the proposed regulations.
In November and December 2012, the Department conferred with potato processors Terrell Potato Chip Company in Syracuse and Frito-Lay in Binghamton. Terrell Potato Chip Company indicated that its culls are used as feed for livestock, a permissible use under the proposal, and had no objection to the regulations as written. Frito-Lay likewise had no objection to the regulations as written.
Rural Area Flexibility Analysis
1. Type and estimated numbers of rural areas:
The proposed rule sets forth requirements for the proper disposal of onion and potato culls. The approved methods are composting, burial, field spreading, feeding to livestock, incineration, anaerobic digestion, landfill disposal and return to the point of origin.
There are approximately 150 potato growers and 93 onion growers throughout rural areas in New York State which will be subject to the proposed rule. A small number of these growers deal with out of state onions and potatoes.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
Regulated parties would be required to compile, maintain and make available for inspection, for a period of two years, records of the disposal of culls or waste piles on a form or forms prescribed by the Commissioner.
Regulated parties may employ outside services to dispose of culls and/or compile and maintain the paperwork, but are not required to do so.
3. Costs:
Regulated parties would have to undertake the costs of disposing of culls. The expense in doing so varies in accordance with the disposal method used and the amount of culls disposed. Regulated parties are not required to hire an outside consultant to satisfy the recordkeeping requirement, but may do so at additional cost.
4. Minimizing adverse impact:
The proposed rule minimizes adverse impact by limiting the regulation to onion and potato culls, rather than culls of all fruits and vegetables. Since the proposal is aimed at the vegetables whose culls pose the greatest health threat to healthy vegetables, the proposed rule limits regulation of only growers of those commodities, thereby eliminating regulatory burden on growers who do not grow those commodities. Accordingly, the approaches for minimizing adverse economic impact required by section 202-a(1) of the State Administrative Procedure Act and suggested by section 202-b(1) of the State Administrative Procedure Act were met.
5. Rural area participation:
On May 19, 2008, the Department met with scientists and officials from Cornell University for consultation on the proposed regulations, as required by section 160-v of the Agriculture and Markets Law. On July 2, 2008, scientists and officials provided their recommendations on proposed disposal methods for culls. They also recommended that the regulations be limited to potatoes and onions.
In August and September 2012, the Department conferred with the New York Farm Bureau, which shared the proposed regulations with its members. Neither the Bureau nor its members had any negative feedback.
On November 9, 2012, the Department met with the Empire Potato Growers Association in Syracuse to discuss the proposed regulations. The potato growers supported the proposed regulations.
In November and December 2012, the Department conferred with potato processors Terrell Potato Chip Company in Syracuse and Frito-Lay in Binghamton. Terrell Potato Chip Company indicated that its culls are used as feed for livestock, a permissible use under the proposal, and had no objection to the regulations as written. Frito-Lay likewise had no objection to the regulations as written.
Job Impact Statement
It is anticipated that the proposed rule will not have a substantial adverse impact on jobs and employment opportunities.
