DEPARTMENT OF AGRICULTURE RULES AND REGULATIONS PERTAINING TO THE COLORADO SEED POTATO ACT 8 CCR 1203-22 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ Part 1.0 Definitions:

These Rules incorporate the definitions set forth in §35-27.3-103, C.R.S. Part 2.0 Requirements for All Certified Seed Potatoes 2.1.0 Pursuant to § 35-27.3-108(1)(b)(II), C.R.S., all certified seed potatoes planted in Colorado in lots sufficient to plant one or more acres as specified in Part 9.0 must meet the following requirements:

2.1.1 Based on the postharvest test, the lot may contain no more than 5% tubers with virus, including no more than 1% PVYN serotype strains (PVYN and PVYNTN).

2.1.2 No tubers may contain any Mop Top or Tobacco Rattle Virus;

2.1.3 The lot must be free of Bacterial Ring Rot (Clavibacter michiganensis subsp. Sepedonicus) and Golden nematode (Globodera rostochiensis), 2.1.4 All seed potatoes imported into the San Luis Valley must meet the requirements of the Quarantine for Late Blight, 8 CCR 1203-13.

2.2.0 Growers must maintain documentation of compliance with these disease standards for a period of two years for each lot of seed potatoes planted.

Part 3.0 Requirements for Sampling, Testing, and Evaluation of Uncertified Seed Potatoes 3.1.0 Uncertified seed potatoes more than one year removed from certification may only be planted if the testing in 3.2.2 verifies the lot meets the disease standards in Part 4.0.

3.2.0 Pursuant to § 35-27.3-105(2)(b), C.R.S., uncertified seed potatoes more than one year removed from certification must be sampled and tested in the following manner prior to planting.

3.2.1 Sampling

3.2.1.1 The grower must provide a sample of 200 tubers for each lot along with name of the grower, cultivar name and source of the cultivar to the Colorado State University San Luis Valley Research Center Laboratory or other laboratory designated by the certifying authority for testing.

3.2.2 Testing

3.2.2.1 A 200 tuber sample for each lot to be planted must be analyzed by the Colorado State University San Luis Valley Research Center Laboratory or other laboratory designated by the certifying authority for all disease standards specified in Part

1. 4.0 of this Rule.

3.3.0 Sampling, Testing and Evaluation Requirements for Uncertified Seed Potatoes No More Than One Generation from Certified or Qualified Parent Potatoes.

3.3.1 No later than November 1, 2025, and by each November 1 thereafter, a grower must submit a sample of 200 tubers for each lot collected in accordance with the certifying authority’s sample collection procedures and including the name of the grower, cultivar name, source of the cultivar, and hundredweight of the lot intended for planting the following year, to the Colorado State University San Luis Valley Research Center Laboratory or other laboratory designated by the certifying authority for testing.

3.3.1.1 The certifying authority or its designee must analyze the samples from each lot to determine that each lot meets the disease standard established in Part 3.3.4.

3.3.1.2 Uncertified seed potatoes may not be planted unless the grower receives

1. approval from the certifying authority indicating that the uncertified potatoes submitted for testing in November have met the standard established in April of that same year.

3.3.2 No later than January 2, 2026, and by each January 2 thereafter, the certifying authority will transmit results of its testing in writing to the grower and, starting January 2, 2027, will include approval of the uncertified seed potatoes for planting if the standard established the previous April for those uncertified seed potatoes has been met.

3.3.3 No later than February 15, 2026, and by each February 15 thereafter, the certifying authority will transmit an aggregate summary of the results described in Part 3.3.2 above to the Seed Potato Advisory Committee established at § 35-27.3-107, C.R.S., and to the Commissioner or the Commissioner’s designee. This summary must not include information that allows a grower or that grower’s operation to be identified.

3.3.4 No later than April 1, 2026, and by each April 1 thereafter, the Commissioner, in consultation with the Seed Potato Advisory Committee established at § 35-27.3-107, C.R.S., will review the results transmitted per Part 3.3.3 above and set a disease standard based on those results. This standard will apply to samples submitted in November in accordance with Part 3.3.1 and will determine whether those uncertified seed potatoes can be planted the following year.

3.3.4.1 As soon as practicable following the determination of the disease standard in Part 3.3.4, the Commissioner or the Commissioner’s designee will publish the standard applicable to next year’s planting to the certifying authority and to growers in a form and manner designated by the Commissioner, which form may include, but is not limited to, written correspondence, electronic mail, or website publication.

3.3.5 Any deadline established in this Part 3 may be extended upon request and made effective by written permission of the Commissioner or the Commissioner’s designee upon a showing of good cause by the requestor.

3.3.6 The grower is responsible for all costs associated with sampling and testing described in this Part 3.

Part 4.0 Quality and Disease Standards for Uncertified Seed Potatoes 4.1.0 Pursuant to § 35-27.3-108(1)(b)(IV), C.R.S., all uncertified seed potatoes more than one year removed from certification that are planted in lots sufficient to plant one or more acres as specified in Part 9.0 shall not exceed the disease standards specified in paragraph E.1.iii, “Special Requirements for Post Harvest Test (Disease Tolerances)” set forth in the “Colorado State University Colorado Potato Certification Service Rules and Regulations for Certification of Seed Potatoes”.

4.1.1 The above referenced paragraph of the Colorado State University Colorado Potato Certification Service Rules and Regulations for Certification of Seed Potatoes, dated January 2024 and published by Colorado State University in cooperation with the Colorado Certified Potato Growers Association, is hereby incorporated by reference and made a part of these Rules. Material incorporated by reference does not include any later amendments or editions of the incorporated material. Copies of the above referenced material are available for public inspection during regular business hours at the Colorado Department of Agriculture, 305 Interlocken Parkway, Broomfield, Colorado 80021. The material incorporated by reference is also available through the Colorado Potato Certification Service at https://www.potatoslvrc.com/our-team/about-us/programs/potato- certification-service/resource-center-links/.

4.1.2 All of the tubers must be free from Bacterial Ring Rot (Clavibacter michiganensis subsp. Sepedonicus), Golden nematode (Globodera rostenchiensis), Late Blight (Phytophthora infestans), and Tobacco Rattle Virus (visual symptoms).

4.1.3 Notwithstanding paragraph 4.1.0 above, the standard applicable for PVY is that standard established per Part 3.3.4 above.

4.2.0 Pursuant to § 35-27.3-108(1)(b)(IV), C.R.S., all uncertified seed potatoes no more than generation removed from certification that are planted in lots sufficient to plant one or more acres as specified in Part 9.0 must be tested by the certifying authority or its designee for PVY and, to be planted, must meet the standard established per Part 3.3.4 above.

4.3.0 Growers must maintain documentation of compliance with the disease standards specified in this Part 4.0 for a period of two years for each lot of seed potatoes planted. Part 5.0 Random Selection of Potato Growers for Records Review.

5.1.0 Each year by April 1, the Colorado Potato Administration Committee (CPAC) offices for areas 2 and 3 shall submit a list of all potato growers to the Department.

5.2.0 The Department will select at least ten percent of the growers at random using computer based random number generating software.

5.3.0 The Department will conduct records inspections on the selected growers.

Part 6.0 Grower Requests for Exemptions under §35.27.3-105(3), C.R.S.

6.1.0 The grower must apply to the Seed Potato Advisory Committee by completing and submitting the official form to the Colorado Potato Administrative Committee office for the area in which the grower is located.

6.2.0 The Commissioner shall notify the grower when an exemption is authorized.

Part 7.0 Requirements for seed potatoes planted under § 35-27.3-105(3) C.R.S.

7.1.0 Seed potatoes granted an exemption pursuant to § 35-27.3-105(3), C.R.S., may not be planted unless a 200 tuber sample from the lot is submitted for testing to the certifying authority or its designee or unless the lot has been previously tested by the certifying authority during the relevant exemption year as part of the certifying authority’s seed potato certification program.

7.1.1 The lot must be free from Bacterial Ring Rot (Clavibacter michiganensis subsp. Sepedonicus) and Late Blight (Phytophthora infestans).

Part 8.0 Fee schedule for services performed by the Department 8.1.0 The Department shall bill the CPAC area offices for services performed by the Department at the following rates:

8.1.1 Hourly fee: $47.00;

8.1.2 Mileage: Cost charged by Colorado State Fleet Management for state vehicles, the state personal mileage rate when using private vehicles; and

8.1.3 Per Diem: State rates.

Part 9.0 Seed potatoes needed to plant one or more acres.

9.1.0 For the purposes of the Colorado Seed Potato Act and these Rules, the amount of potatoes sufficient to plant one or more acres shall be up to fifty hundredweight of seed potatoes. Part 10.0 – 12.0 Reserved Part 13.0 Statement of Basis, Specific Statutory Authority and Purpose

13.1.0 June 14, 2011 - Effective January 1, 2012

These rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA”) pursuant to his authority under the Colorado Seed Potato Act (the “Act”) §§ 35-27.3-101 through 112, C.R.S.

Purpose The purpose of these proposed rules is to implement the Colorado Seed Potato Act. Part 1.0 explains where the definitions for terms used in the rules can be found and states that the definitions in the Act are applicable to the rules. Part 2.0 states the requirements of the State National Harmonization Program and lists which quarantines are applicable to seed potatoes.

Part 3.0 states the requirements for compliance verification, testing, sampling, and inspection. Part 4.0 specifies the quality and disease standards that must be met for seed potatoes to be planted.

Part 5.0 specifies how the Commissioner will randomly select ten percent of potato growers for records inspections.

Part 6.0 specifies where the growers seeking an exemption pursuant to §35-27.3.105(3), C.R.S. must submit their request and states that the Commissioner will notify the grower when an exemption is authorized.

Part 7.0 specifies the methods that must be used for determining that bacterial ring rot and late blight are not present in the seed potatoes requested for planting. Part 8.0 specifies the fees the Department will charge for services provided. Part 9.0 specifies the amount of seed potatoes that are sufficient to plant one or more acres. Factual and Policy Basis Issues The factual and policy issues encountered when developing these rules include:

1) The Colorado Seed Potato Act was passed by the General Assembly and signed into law by Governor Ritter in 2010. The Act requires the development of several rules for the implementation of the Act. The Act’s requirements will be effective January 1, 2012, therefore all rules must be developed prior to this time.

2) Part 1.0: The definitions in the Act are referenced in this section so producers know where to find the definitions for terms used in the proposed rules 3) Part 2.0: Section 35-27.3.105(b), C.R.S. of the Act requires that seed potatoes imported into Colorado meet the requirements of the State National Harmonization Program and any applicable quarantine. Sections 2.1.1 through 2.1.5 of the proposed rules states the requirements as listed in the State National Harmonization Program. USDA developed the State National Harmonization program requirements as a means to establish minimum quality requirements for potato seed quality to facilitate international export of seed potatoes. These requirements are listed in USDA’s program. Section 2.1.6 states the seed must meet the requirements of the late blight quarantine. The late blight quarantine is the only applicable quarantine at this time. The Colorado Department of Agriculture has not adopted any other quarantine for seed potatoes.

4) Part 3.0: Section 35-27.3.108(1)(b)(1), C.R.S. of the Act requires the Commissioner to establish requirements for compliance verification, testing, sampling, and inspection. Part 3.0 states the requirements. 400 tubers is the common quantity used for disease analysis in potatoes. These figures come from both certified seed potato regulations as well as requirements for disease monitoring on potato tubers for export. The Acts states that a grower must submit seed stock to the certifying authority of Colorado for testing and the certifying authority of Colorado approves the seed stock for planting. Colorado State University is the certifying authority for seed potatoes in Colorado. Colorado State University operates the San Luis Valley Research Center Laboratory for potato testing so this is the best laboratory for potato disease testing.

5) Part 4.0: Section 35-27.3.108(1)(b)(II), C.R.S. of the Act requires the Commissioner to specify quality or disease standards for potatoes. Part 4.0 of the proposed rules states these requirements. These standards are based on seed certification requirements for potatoes. These are generally accepted standards for disease prevention and control. Section 35-27.3.108(1)(b)(IV), C.R.S. requires the Commissioner to set standards for uncertified seed stock that may be planted pursuant to §35-27.3-105(2)(b), C.R.S. These standards are in Part 4.0 of the rules also mentioned above.

6) Part 5.0: Section 35-27.3.108(1)(b)(III) C.R.S. requires the Commissioner to adopt rules to allow for the random selection of ten percent of potato growers subject to the annual records review required under §35-27.3-106(2), C.R.S. These proposed rules are stated in Part 5.0. The most objective manner to choose the ten percent is through a computer random number generator. The Department has the software to do this.

7) Part 6.0: The Commissioner also has the authority in § 35-27.3-108, C.R.S. to adopt rules necessary for the administration and enforcement of this article. Part 6.0 of the proposed rules was developed to provide guidance to growers seeking an exemption pursuant to § 35-27.3.105(3), C.R.S. This rule states where the grower must submit their request and also states that the Commissioner will notify the grower when an exemption is authorized.

8) Part 7.0: Section 35-27.3.108(1)(b)(V), C.R.S. requires the Commissioner to establish methods for determining that bacterial ring rot or an unacceptable level of community diseases is not present in seed potatoes planted under §35-27.3-105 (3), C.R.S. These requirements are stated in part 7.0 of the rules. The number of tubers from each lot that must be submitted and who will do the testing are the same as previously described for Part 3.0 of the rules. This testing is the same process.

9) Part 8.0: Section 35-27.3.108(1)(b)(VII), C.R.S. requires the Commissioner to set a schedule of fees for services performed by the Department. These fees are stated in Part 8 of the proposed rules. The fees are based on actual costs of services from the Department.

10) Part 9.0: Section 35-27.3.104, C.R.S. requires the Commissioner to establish the amount of seed potatoes that are sufficient to plant one or more acres as this is the threshold for determining if a grower must be in compliance with the Act. This amount is stated in Part

9.0 of the proposed rules. Through discussion with the Seed Potato Act Advisory

Committee it was determined that based on the variety of seed potatoes being planted the amount to plant one or more acres was up to fifty hundredweight of seed potatoes.

13.2.0 February 12, 2014 – Effective March 30, 2014

These Rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture pursuant to his authority under the Colorado Seed Potato Act, § 35-27.3-108(1)(b), C.R.S. The purpose of these proposed Rule amendments are as follows:

1. To clarify in Parts 2.1.1, 2.1.2 and 2.1.3 that the disease percentage is based on the number of tubers with the various viruses or diseases.

2. To reduce the percentage of tubers allowed with necrotic viruses in Part 2.1.3 from 2% to 1.5%.

3. To clarify in 2.1.3 that PVYN refers to all strains of PVYN.

4. To clarify the language in 2.1.3 regarding the standard for PVYN, PVYNTN, mop top and tobacco rattle virus.

5. To require in Part 4.1.0 that the disease standards for seed potatoes to be replanted are the same as what is required in the Colorado Rules and Regulations for the Certification of Seed Potatoes established by Colorado State University in cooperation with the Colorado Certified Potato Growers Association.

Factual and policy basis issues encountered when developing these Rules include:

1. Adding the terminology, “tubers with,” clarifies how the percentage of a virus or disease is calculated for purposes of these Rules.

2. The potato industry is trying to reduce the amount of disease in seed potatoes. Colorado State University and the Colorado Certified Potato Growers Association are reducing their certified seed standards for necrotic diseases to 1.5%. Incorporating this standard into the Colorado Seed Potato Act Rules creates a consistent standard for the industry.

3. There are several strains of PVYN. The amendment to Part 2.1.3 recognizes this and clarifies that all of the strains are regulated.

4. The Colorado Rules and Regulations for the Certification of Seed Potatoes and the Colorado Seed Potato Act Rules both contain standards for the same diseases. Referencing the Colorado Rules and Regulations for the Certification of Seed Potatoes in these Rules is the simplest and most effective way to make the standards equivalent now and ensure consistency in the future if the standards change.

13.3.0 February 11, 2015 – Effective March 30, 2015

These Rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA”) pursuant to his authority under the Colorado Seed Potato Act (the “Act”) §§ 35-27.3-101 through 112, C.R.S., specifically, §§ 35-27.0-108(1)(b)(II) and (IV), C.R.S. The purposes of these proposed Rule Amendments are as follows:

1. Amend Part 2.0 title to include all certified seed potatoes, not just imported seed potatoes.

2. Amend Rule 2.1.0 to correct the statutory reference and clarify the scope of the Rule.

3. Amend Rule 2.1.2 to lower the standard for total virus from 10% to 8% based on postharvest testing.

4. Amend Rule 2.1.3 to remove the zero tolerance for PVYN and PVYNTN and include those in the 1.5% tolerance for necrotic viruses.

5. Add a new Rule 2.2.0 to provide the statutory citation for the authority of this Rule, clarify which seed potatoes are subject to the standards listed in 2.2.1 through 2.2.5, and establish disease standards in 2.2.1 through 2.2.5 for seed potatoes planted on or after August 1, 2015.

6. Adopt a new Rule 2.2.1 establishing virus standards for total virus as well as PVYN serotype strains as determined by a postharvest test.

7. Adopt a new Rule 2.2.2 establishing an alternative standard for disease levels should a postharvest test not be useable.

8. Adopt a new Rule 2.2.3 maintaining the current zero tolerance for Mop Top and Tobacco Rattle Virus after August 1, 2015.

9. Adopt a new Rule 2.2.4 maintaining the current zero tolerance for Bacterial Ring Rot and Golden Nematode after August 1, 2015.

10. Adopt a new Rule 2.2.5 maintaining the requirement that all imported seed potatoes be free from Late Blight and meet the requirements of the Late Blight Quarantine after August 1, 2015.

11. Adopt a new Rule 2.3.0 maintaining the current requirement that records of compliance with the disease standards in Part 2.0 must be maintained for two years.

12. Amend Rule 4.1.0 to include the statutory citation that authorizes this Rule.

13. Add a new Rule 4.1.2 clarifying the current requirement that records of compliance with the disease standards in Part 4.0 must be maintained for two years.

14. Change the hourly fee charged by the Department for work conducted for the Act to reflect the current non-mandatory inspection fee charged by the Fruit and Vegetable Inspection Service.

Factual and policy basis issues encountered when developing these Rules include:

1. The current Rules in Part 2.0 apply only to imported seed potatoes, not potatoes produced in Colorado, which by default are therefore subject only to the seed potato certification standards. Part 2.0 as amended now establishes the disease standards for both imported seed potatoes and seed potatoes produced in Colorado. These standards need to be the same to clarify planting requirements.

2. The standard is being lowered for total virus to match the rules enacted by the Colorado Certified Seed Growers Association. Also the standard for total virus is being lowered to offset the increase in PVYN strains that are now being allowed.

3. PVYN and PVYNTN are now widespread in the San Luis Valley and a zero tolerance is not realistic. As PVYN and PVYNTN are necrotic viruses, they are now included as part of the total virus tolerance.

4. A new Rule 2.2.0 is needed to ensure a smooth transition to the new standards that will apply to seed potatoes that are planted on or after August 1, 2015.

5. The standard for seed potato disease standards is a postharvest test. Rule 2.2.1 clarifies that this test is to be utilized to determine the disease level in each seed potato lot. This Rule sets a maximum of 5% total virus in the lot, which is a 3% reduction from the previous year in order to require seed potatoes to have lower levels of virus diseases and therefore hopefully diminish the disease levels in the crop produced by these seed potatoes. The Rule also establishes a maximum of 1% PVYN strains for the lot as part of the total 5%. This reduces the tolerance by 0.5% from the previous year in order to require seed potatoes to have lower levels of necrotic disease and therefore hopefully diminish the disease levels in the crop produced by these seed potatoes.

6. A postharvest test requires the plants to sprout and grow to a sufficient size to be evaluated for disease levels. Many factors can contribute to this not being successful such as weather events and changes in the growing conditions. Rule 2.2.2 therefore provides an alternative method as a backup.

7. The industry wishes to maintain a zero tolerance for Mop Top and Tobacco Rattle Virus for production and trade purposes. As this is achievable the standard will remain at zero in Rule 2.2.3.

8. The industry wishes to maintain a zero tolerance for Bacterial Ring Rot and Golden Nematode for production and trade purposes. As this is achievable the standard will remain at zero in Rule 2.2.4.

9. The Late Blight Quarantine applies to all imported seed potatoes. Rule 2.2.5 clarifies that imported seed potatoes must meet those requirements apart from any requirements in the Seed Potato Act and associated Rules.

10. Two years is the longest a seed lot could be used without certification or other testing so the record retention requirement in Rule 2.3.0 aligns with the time frame to provide documents for verification of compliance.

11. The Fruit and Vegetable Inspection Service’s current fee for non-mandatory inspections is $37.50. The Fruit and Vegetable Inspection Service conducts the inspections for compliance with the Act.

12. These amendments incorporate changes as a result of the Department’s Regulatory Efficiency Review Process.

13.3.1 Adopted April 13, 2016 - Effective April 13, 2016

This Emergency Rule amendment is proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA”) pursuant to his authority under the Colorado Seed Potato Act (“the Act”) Sections 35-27.3-101 through 112, C.R.S., specifically, Sections 35-27.3-108(1)(b)(II) The purpose of this proposed rule amendment is as follows:

1. Amend Part 2.2.2 to provide that if a postharvest test is not available in 2016 lots will be evaluated for eligibility for planting based on the second seed certification field inspection results for total viruses.

Factual and policy basis issues encountered when developing this Rule amendment:

1. The current Rules in Part 2.2.0 became effective on March 30, 2015 and applies to all seed potatoes planted after August 1, 2015. When these Rules were adopted they required all seed potatoes to undergo a postharvest test to be eligible to be planted in 2016 and subsequent years. The postharvest test is typically conducted by Colorado State University as part of the seed potato certification process.

2. Colorado seed potatoes are certified under rules and regulations promulgated by the Board Of Governors of the Colorado State University system in conjunction with the Colorado Certified Potato Growers Association. When Rule 2.2.2 of the Seed Potato Act was adopted, it was not clear that the Colorado certified seed potato growers rules only required that nuclear stock and Generation 1 seed potatoes be subjected to a postharvest test if the seed was to be sold. A large percentage of nuclear stock and Generation 1 seed potatoes are not sold but rather are retained to be planted by the producer in the next year. Therefore after production of the 2015 seed potato crop, very few lots of nuclear or Generation 1 seed potatoes were subjected to a postharvest test. All other classes of seed potatoes (G2 – G6) that were requested for certification were subjected to postharvest testing.

3. Over 100 lots of nuclear stock and Generation 1 seed potatoes were not subjected to a postharvest test. Without a change to the Rule to allow these two classes of seed potatoes to be planted, almost two entire generations of seed potatoes would be lost and the resulting effect on the availability of seed potatoes to be planted in future years would be catastrophic. It could result in a shortage of certified seed potatoes or potato growers needing to import significant amounts of seed potatoes from other states.

4. This oversight was not noticed until early 2016, well after the postharvest tests could be completed. The alternative option proposed in this Rule to allow for the production of nuclear stock and Generation 1 seed potatoes to be planted if the second field inspection showed no more than 1% total virus provides adequate protection for other potato growers from these classes of seed as they are rarely infected with viruses at this level.

13.3.4 Adopted January 15, 2025 - Effective March 17, 2025

The amendments to these rules are proposed for adoption by the Commissioner of the Colorado Department of Agriculture (“CDA”) pursuant to the Commissioner’s authority under the Colorado Seed Potato Act, §§ 35-27.3-101 through 112, C.R.S., specifically, §§ 35-27.3-105(2)(b) and 35- 27.3-108(1)(b)(I), (II), and (IV).

Purpose The purpose of these proposed amendments is to:

1. Amend Part 2 to delete obsolete language.

2. Amend Part 3 to establish the sampling, testing, and approval requirements applicable to uncertified seed potatoes grown and stored as part of a grower’s farming operation that are more than one generation removed from certified or qualified parent potatoes and those uncertified seed potatoes that are no more than one generation removed from certification.

3. Also amend Part 3 to establish new sampling, testing, evaluation, and reporting requirements that will result in an annual standard for potato virus Y (“PVY”) that applies to all uncertified seed potatoes planted under § 35-27.3-105(2), C.R.S.

4. Amend Part 4 to clarify standards for uncertified potatoes planted under § 35-27.3- 105(2)(b), C.R.S., by rule.

5. Amend Part 5 to clarify the percentage of growers to be audited to be at least ten percent consistent with § 35-27.3-106(2)(a), C.R.S.

6. Amend Part 7 to clarify testing requirements for potatoes subject to an exemption request made under § 35-27.3-105(3), C.R.S.

7. Amend Part 8 to update the hourly inspection fee and delete irrelevant language.

8. Update numeric references and typographical errors as needed. Factual and Policy Issues The factual and policy issues encountered when developing these rules include:

1. The Department held a hearing on the proposed rules on October 16, 2024. The Department heard oral testimony and received written comments from seed potato growers, commercial potato growers, legislators, and other industry members. These comments focused on the importance of addressing PVY in the San Luis Valley (“Valley”), including by regulating potatoes no more than one generation from certified or qualified parent potatoes (“Year-Out Potatoes); the circumstances under which a grower may plant uncertified seed potatoes; the testing and approval requirements applicable to uncertified seed potatoes planted under § 35-27.3-105(2)(a)(I) and § 35-27.3- 105(2)(a)(II), C.R.S.; and the timing surrounding implementation of the proposed rules.

2. Establishment of standards for Year-Out Potatoes is necessary because, to date, the Seed Potato Act (“Act”) exempted these potatoes from testing prior to planting, such that there were no disease standards applicable to Year-Out Potatoes. This exemption contributed to an apparent increase in percentage of potato fields infected with PVY.

3. During this rulemaking, including at least three meetings with industry stakeholders, members of the Colorado State University (“CSU”) Potato Certification Service, and representatives of the Colorado Potato Administrative Committee and the Seed Potato Advisory Committee, the Department learned that there was insufficient scientific data available to quantify PVY in Year-Out Potatoes in the Valley. Therefore, the Department cannot establish a disease standard for PVY without first collecting and analyzing disease prevalence data. Further, a single numeric standard is not dynamic or flexible enough to account for voluntary grower-led efforts or environmental changes that can reduce levels of PVY in the Valley organically.

4. The proposed Rules establish a process by which the Commissioner collects data on Year-Out Potatoes each year and, in consultation with the Seed Potato Advisory Committee, establishes a yearly standard for PVY based on that data.

5. The timeline for standard setting at Part 3.3 is closely tied to the growing season and provides growers with an ability to acquire certified or uncertified seed for planting in the event that a grower’s uncertified potatoes intended for planting under § 35-27.3-105(2), C.R.S., do not meet the annual standard established in Part 3.3.4.

6. Although the Department had proposed to delete standards applicable to uncertified potatoes more than one year removed from certification in Part 4, comments received at the hearing indicate that retaining such standards is important because uncertified potatoes intended for planting under § 35-27.3-105(2)(a)(I), C.R.S.—including when those potatoes are more than one generation removed from certification—may pose a different risk of disease than those uncertified Year-Out Potatoes planted under § 35- 27.3-105(2)(a)(II), C.R.S. As such, the Department is retaining the requirements for sampling and testing of uncertified potatoes more than one generation removed from certification in Parts 3.1.0 and 3.2.0 and retaining most standards in Part 4 for these same potatoes.

7. The proposed Rules make clear that the annual PVY standard set in Part 3.3.4 applies to all uncertified potatoes intended to be planted under § 35-27.3-105(2),C.R.S., regardless the generation. This will create consistency and avoid confusion.

8. When reviewing Part 4 of the Rules post-hearing, the Department identified that the reference to “paragraph 16.f” in CSU’s “Rules and Regulations for Certification of Seed Potatoes” was inaccurate. Therefore, the Department has revised Part 4.1.0 to update the necessary reference to post-harvest disease standards and to incorporate the relevant section of the “Colorado State University Colorado Potato Certification Service Rules and Regulations for Certification of Seed Potatoes” by reference as required by § 24-4-103(12.5), C.R.S.

9. Although the Department heard comment at the hearing that different testing and approval requirements apply to uncertified potatoes planted under § 35-27.3-105(2)(a)(I) versus (2)(a)(II), C.R.S., the Act makes no such distinction. The requirement at § 35- 27.3-105(2)(b)(I), C.R.S., that uncertified potatoes be submitted to the certifying authority for testing applies to all “uncertified potatoes” intended for planting under § 35-27.3- 105(2), C.R.S., regardless the generation of potato. Section 35-27.3-105(2)(b)(II),C.R.S., then requires that the certifying authority “approve the uncertified potato seed stock for planting if it meets the standards . . . established by the commissioner by rule.” Consistent with that rulemaking authority, as well as the authority described at § 35-27.3- 108(1)(b)(IV), C.R.S., the proposed Rules differentiate the disease standards applicable to uncertified potatoes more than one generation from certification at Part 4.1.0 from the single PVY disease standard applicable to Year-Out Potatoes at Part 4.2.0.

10. Because the Act now requires that the certifying authority in Colorado test Year-Out Potatoes in addition to those uncertified potatoes already subject to testing, the certifying authority in Colorado may incur laboratory delays due to increased volume of samples, which could make timely turnaround of results impossible given the timeline necessary to collect samples, return results, and establish a standard based on the same. Therefore, the proposed amendments at Part 3 permit the certifying authority to designate another laboratory or laboratories to complete the testing required by the Act.

11. During the most recent exemption year, the Department learned that many of the potatoes for which an exemption under § 35-27.3-105(3), C.R.S., was sought had already been tested for late blight and other quarantine diseases by the certifying authority as part of the seed potato certification process. In such cases, where the certifying authority has already tested representative lots of uncertified potatoes, there is no need to require such testing a second time. Therefore, the proposed amendments to Part 7 clarify that potatoes that have already been tested during the exemption year do not need to be retested as part of the exemption request process.

12. The proposed amendments also reduce the tuber sample size in Part 3.0 from 400 to 200 throughout the Rules. The Department consulted with CSU’s Potato Certification Service to determine that a smaller sample size is less costly to analyze; is sufficient for analyzing PVY disease load; and presents less burden on the certifying authority from a storage perspective.

13. To harmonize the Act with fruit and vegetable inspection pricing structures, the proposed Rules increase the hourly inspection fee to $47 per hour in Part 8.1.1. _________________________________________________________________________ Editor's Notes History Entire rule eff. 01/01/2012.

Parts 2.0, 4.0, 13.2.0 eff. 03/30/2014.

Entire rule eff. 03/30/2015.

Parts 2.2.2, 13.1.0.9), 13.3.1 emer. rules eff. 04/13/2016; expired 08/11/2016. Parts 2.0-5.0, 7.0-8.0, 13.3.4 eff. 03/17/2025.