Citrus Canker; Interstate Movement of Regulated Nursery Stock From Quarantined Areas, 16097-16104 [E9-8103]
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Rules and Regulations
Federal Register
Vol. 74, No. 67
Thursday, April 9, 2009
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2007–0032]
RIN 0579–AC38
Citrus Canker; Interstate Movement of
Regulated Nursery Stock From
Quarantined Areas
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AGENCY: Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
SUMMARY: We are adopting as a final
rule, with one change, an interim rule
that amended the citrus canker
regulations to explicitly prohibit, with
limited exceptions, the interstate
movement of regulated nursery stock
from a quarantined area. The interim
rule provided two exceptions to this
prohibition, one that allowed nursery
stock to be moved interstate for
immediate export under certain
conditions and another that allowed
calamondin and kumquat plants to be
moved interstate in accordance with a
protocol designed to ensure their
freedom from citrus canker. Our
decision to provide for the interstate
movement of calamondin and kumquat
plants was based on their apparent
resistance to citrus canker infection.
However, since the publication of the
interim rule, we have confirmed that 47
calamondin plants growing in an area
quarantined for citrus canker were
infected with the disease. Therefore,
this final rule amends the protocol to
exclude calamondin plants. The interim
rule was necessary to clarify our
regulations and to address the risk
associated with the interstate movement
of regulated nursery stock from areas
quarantined for citrus canker.
DATES: Effective Date: May 11, 2009.
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FOR FURTHER INFORMATION CONTACT: Mr.
Stephen Poe, Senior Operations Officer,
Emergency and Domestic Programs,
Plant Protection and Quarantine,
APHIS, 4700 River Road, Unit 137,
Riverdale, MD 20737–1231; (301) 734–
8899.
SUPPLEMENTARY INFORMATION:
Background
Under section 412(a) of the Plant
Protection Act (7 U.S.C. 7701 et seq.,
referred to below as the PPA), the
Secretary of Agriculture may prohibit or
restrict the movement in interstate
commerce of any plant or plant product,
if the Secretary determines that the
prohibition or restriction is necessary to
prevent the dissemination of a plant
disease within the United States. Under
the Act, the Secretary may also issue
regulations requiring plants and plant
products moved in interstate commerce
to be subject to remedial measures
determined to be necessary to prevent
the spread of a plant disease or
requiring the objects to be accompanied
by a permit issued by the Secretary prior
to movement.
Citrus canker is a plant disease that is
caused by the bacterium Xanthomonas
citri subsp. citri (referred to below as
Xcc) that affects plants and plant parts
of citrus and citrus relatives (Family
Rutaceae). Citrus canker can cause
defoliation and other serious damage to
the leaves and twigs of susceptible
plants. It can also cause lesions on the
fruit of infected plants, which render
the fruit unmarketable, and cause
infected fruit to drop from the trees
before reaching maturity. The aggressive
A (Asiatic) strain of citrus canker can
infect susceptible plants rapidly and
lead to extensive economic losses in
commercial citrus-producing areas.
Citrus canker is only known to be
present in the United States in the State
of Florida.
The regulations to prevent the
interstate spread of citrus canker are
contained in ‘‘Subpart—Citrus Canker’’
(7 CFR 301.75–1 through 301.75–14,
referred to below as the regulations).
The regulations restrict the interstate
movement of regulated articles from and
through areas quarantined because of
citrus canker. Regulated articles are
plants and plant parts of all species,
clones, cultivars, strains, varieties, or
hybrids of the genera Citrus and
Fortunella, and all clones, cultivars,
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strains, varieties and hybrids of the
species Clausena lansium and Poncirus
trifoliata. Plants and plant parts include
fruit, seed, grass clippings, plant
clippings, tree clippings, and nursery
stock. The regulations also provide
conditions under which regulated fruit
and regulated seed may be moved from
quarantined areas.
Preventing the spread of citrus canker
is of great importance, and the
regulations are therefore necessary, not
only because of the severity of the
disease, but also because commercial
citrus production is of considerable
significance to the U.S. agricultural
economy. Since 2002, an average of
939,360 acres within the United States
has been devoted annually to citrus
grown for commercial production.1
During the same time period, these acres
have produced, on average, more than
13 million tons of fresh citrus a year.2
The average estimated annual value of
citrus produced in the United States
during that time period was $2.55
billion (packinghouse door equivalent).
Florida accounts for the majority of
commercial citrus produced in the
United States, but there is substantial
commercial citrus production in other
States. Between 2002 and 2007,
Arizona, California, and Texas, three
States that the United States Department
of Agriculture’s (USDA’s) Animal and
Plant Health Inspection Service (APHIS)
has designated as commercial citrusproducing areas in § 301.75–5,
maintained, on average, 305,500 acres
devoted to commercial citrus
production annually and produced an
average of more than 3.64 million tons
of fresh citrus articles each year.3
Moreover, commercial citrus
production in Florida has declined in
recent years, from approximately 11.5
million tons in 2002 to approximately
7.8 million tons in 2006. The primary
reason for this decline was the
exceptionally active hurricane seasons
of 2004 and 2005, which were
devastating to Florida’s citrus
1 Source: Florida Agricultural Statistic Service
(FASS), National Agricultural Statistics Service
(NASS), USDA, ‘‘Citrus Summary 2006–2007,’’
February 2008.
2 Data for 2002–2006 are derived from: NASS/
USDA, ‘‘Citrus Fruits 2006 Summary,’’ 2006. 2007
data are from: NASS/USDA, ‘‘Citrus Summary
2006–2007,’’ February 2008.
3 Data for 2002–2006 are derived from: NASS/
USDA, ‘‘Citrus Fruits 2006 Summary,’’ 2006. 2007
data are from: NASS/USDA, ‘‘Citrus Summary
2006–2007,’’ February 2008.
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production. Not only was extensive
damage to citrus plants wrought during
each hurricane, but the storms also
widely disseminated diseases affecting
citrus, including citrus canker, within
the State.
Before the 2004 and 2005 hurricane
seasons, we had sought to quarantine
those areas within the State where the
disease was found and to promote
eradication efforts, while allowing the
normal movement of regulated citrus
articles from those areas within Florida
where the disease was not present. In
areas quarantined for citrus canker, the
regulations required a number of
measures prior to the interstate
movement of any regulated articles:
Inspections at set intervals of all
regulated citrus plants and trees within
the area, except indoor house plants;
treatment of all vehicles, equipment,
personnel, and other articles used in
providing inspection, maintenance,
harvesting, or related services in any
grove containing regulated plants or
trees, as well as in providing
landscaping or lawn care services on
any premises containing regulated
plants or regulated trees; and
destruction of all plants and trees
within the area that were determined to
be infected with citrus canker, except
plants and trees at nurseries and indoor
house plants.
We based this earlier approach on the
localized nature of quarantined areas
within Florida during that time period.
Such areas were usually no greater than
a county.4 Because of the relatively
small size of these quarantined areas,
we were confident that this approach
would allow us to identify and
quarantine newly infected areas quickly
enough to prevent the further spread of
the disease within Florida and to
eradicate citrus canker within the State.
However, after the hurricane seasons
of 2004 and 2005, at one point
approximately 75 percent of all
commercial citrus trees in the State
were located within 5 miles of a
location where citrus canker had been
detected. It thus became apparent that,
because of the size and distribution of
the newly affected areas, the existing
approach would no longer be adequate
to eradicate the disease or prevent its
spread within Florida. Therefore, on
January 10, 2006, APHIS announced
that it had determined that the
established eradication program was no
4 In the decade preceding the end of the 2005
hurricane season, APHIS issued three interim rules
(61 FR 1519–1521, Docket No. 95–086–1; 65 FR
53528–53531, Docket No. 00–036–1; 69 FR 55315–
55320, Docket No. 04–045–1) designating areas in
Florida as quarantined areas. Two of these three
rules added counties or portions of counties.
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longer a scientifically feasible option to
address citrus canker within Florida.5
We later codified this decision in an
interim rule 6 effective and published in
the Federal Register on August 1, 2006
(71 FR 43345–43352, Docket No.
APHIS–2006–0114), in which we
declared the State of Florida a
quarantined area for citrus canker and
amended the requirements for the
movement of regulated citrus articles
from Florida.
Specifically, in that rule, we moved
provisions of the regulations requiring
inspections at set intervals of regulated
plants and trees, except indoor house
plants; the treatment of articles used in
providing landscaping services; and the
destruction of plants and trees, except
for plants and trees at nurseries and
indoor house plants, from § 301.75–6,
which sets conditions that must be met
in order for any regulated articles to be
moved interstate from a quarantined
area, to paragraph (d) of § 301.75–4,
which sets out conditions that must be
met in order for less than an entire State
to be designated as a quarantined area.
We stated that these provisions were
only appropriate for a regulatory
program focused on eradication, and
thus were no longer applicable to
Florida.
After the publication of the August
2006 interim rule, it was determined
that the amendments that the 2006
interim rule made to § 301.75–6 could
be construed as allowing the interstate
movement of citrus nursery stock from
an area quarantined for citrus canker.
Citrus nursery stock, however, is
considered to be one of the most likely
pathways for the introduction of Xcc to
previously unaffected areas.7 Therefore,
we determined that it was necessary to
amend the regulations to clarify that
such movement was not allowed. At the
same time, we recognized that there
were many citrus producers within
Florida who had been adversely affected
by the restrictions imposed by the
interim rule. Accordingly, we also
sought to provide them with a degree of
5 APHIS, Letter to Charles H. Bronson,
Commissioner of Agriculture, Florida Department
of Agriculture and Consumer Services, January 10,
2006.
6 To view the interim rule and the comments we
received, go to https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2006-0114.
7 APHIS, ‘‘Movement of Commercially Packed
Citrus Fruit from Citrus Canker Disease Quarantine
Area: Revised Risk Management Analysis,’’
September 2007, ppg. 25–26. To view this
document, go to https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2007-0022.
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regulatory relief appropriate under the
circumstances.
As a result, in an interim rule 8
effective March 16, 2007, and published
in the Federal Register on March 22,
2007 (72 FR 13423–13428, Docket No.
APHIS–2007–0032), we amended the
regulations to explicitly prohibit the
movement of citrus nursery stock from
an area quarantined for citrus canker.
This action was necessary to clarify our
regulations and address the risk
associated with the interstate movement
of nursery stock from a quarantined
area. The interim rule also included two
exceptions to the prohibition, one that
allowed citrus nursery stock to be
moved interstate for immediate export,
subject to certain restrictions, and
another that allowed calamondin and
kumquat plants to be moved interstate
under a protocol designed to ensure
their freedom from citrus canker prior to
movement.
We solicited comments concerning
the interim rule for 60 days ending May
21, 2007. We subsequently reopened
and extended the deadline for
comments until June 11, 2007, in a
document published in the Federal
Register on May 23, 2007 (72 FR 28827,
Docket No. APHIS–2007–0032). For
reasons we discuss below in the section
entitled ‘‘Comments Regarding the
Interstate Movement of Calamondins
and Kumquats,’’ we reopened and
extended the deadline for comments
once more, until February 28, 2008, in
a document published in the Federal
Register on January 29, 2008 (73 FR
5085, Docket No. APHIS–2007–0032).
We received 18 comments by that
date, from State departments of
agriculture, greenhouses, citrus nursery
stock growers, brokers for stock growers,
and a plant board. The comments are
discussed below by topic.
General Comments on the Interim Rule
Two commenters stated that the
interim rule contained no scientific
analysis evaluating the risks associated
with the interstate movement of citrus
nursery stock from a quarantined area.
In the absence of such an analysis, the
commenters suggested that APHIS had
not adequately examined the possible
risks posed by such movement or the
availability of control measures that
may mitigate or eliminate these risks.
Because of this, they stated that we
ought to withdraw the interim rule.
Similarly, two commenters stated that
APHIS had overstated the risk of spread
8 To view the interim rule or the comments we
received, go to https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2007-0032.
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of citrus canker associated with the
interstate movement of nursery stock
from the State of Florida.
Our prohibition on the interstate
movement of nursery stock reflects the
fact that the movement of citrus nursery
stock has been considered one of the
most likely pathways for the spread of
citrus canker. In virtually every case
worldwide where citrus canker has been
introduced into a previously unaffected
area, it is considered likely to have
occurred through the movement of
infected nursery stock. Moreover, USDA
has historically prohibited the interstate
movement of citrus nursery stock from
areas quarantined because of citrus
canker. The purpose of the interim rule
was therefore to make explicit our longstanding historical practice and sciencebased policy of prohibiting the interstate
movement of citrus nursery stock from
areas quarantined for citrus canker.
Because this prohibition was not new,
we did not prepare a risk assessment for
the interim rule.
We also note that the dispersion of
Xcc was widespread within the State of
Florida as a result of the 2004 and 2005
hurricane seasons and that there were,
consequently, many newly infected
citrus plants within the State, including
citrus nursery stock. These two
considerations had, in fact, formed the
basis for designating the entire State of
Florida as a quarantined area in August
2006.
In deciding within that same rule to
codify a protocol that allowed the
interstate movement of calamondin and
kumquat plants under certain
conditions, we relied on a peerreviewed scientific article on citrus
canker and the long-standing, but
informal, consensus of scientists
regarding the strong biological
resistance of calamondins and kumquats
to Xcc.9 We have since obtained
epidemiological results that indicate
that calamondins are not as resistant to
citrus canker as we had previously
believed. We discuss this information in
greater detail in the section entitled
‘‘Comments Regarding the Interstate
Movement of Calamondins and
Kumquats.’’
Several commenters questioned the
need for the interim rule on other
grounds. Some stated that in Florida,
the only State currently quarantined for
citrus canker, nursery inspections
mandated by Federal and State
9 We adopted a similar protocol in a final rule
published in the Federal Register on March 24,
1989 (54 FR 12175–12183, Docket No. 88–105); we
removed the protocol from the regulations, without
giving a reason for doing so, in a final rule
published in the Federal Register on September 11,
1990 (55 FR 37441–37453, Docket No. 90–114).
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authorities suffice to prevent the
movement of nursery stock infected
with citrus canker. Others asserted that
the biosecurity measures many nursery
stock growers voluntarily undertake in
order to market their plants, beyond
those required by Federal or State
regulations, provide adequate protection
against the spread of citrus canker
through the movement of nursery stock.
There are currently no Federal
regulations requiring the inspection of
citrus nursery stock in Florida. When an
entire State has been designated as an
area quarantined for citrus canker, there
are no Federal regulations requiring
inspection of citrus nursery stock within
that area. In the August 2006 interim
rule that designated the entire State of
Florida as a quarantined area for citrus
canker, we had intended to remove any
reference to inspections from § 301.75–
6 because that provision was
appropriate only for a program focused
on eradication and conducted in a
quarantined area smaller than a State.
The provision was therefore no longer
appropriate for Florida, given our
January 2006 determination that the
widespread dispersion of Xcc that had
occurred throughout the State as a result
of the 2004 and 2005 hurricane seasons
had rendered an eradication-based
approach unfeasible. Likewise, we
recognized in 2006 that the provision
more appropriately belonged in
§ 301.75–4, which contains provisions
under which an area less than an entire
State may be designated as a
quarantined area for Xcc. Our intention
in the August 2006 interim rule was
therefore to remove the provision from
§ 301.75–6 and add it to § 301.75–4.
While we did the latter, we did not do
the former. Our mistake in leaving the
inspection provision in § 301.75–6 is
demonstrated by the fact that, after
publication of the August 2006 interim
rule, § 301.75–6 appeared not to require
inspected plants to yield negative
results for the presence of citrus canker.
Our regulations could then be read to
allow infected nursery stock, whether
visibly affected or asymptomatic, to be
transported interstate. As these
provisions did not conform to our longstanding historical practice and sciencebased policy, we removed the
provisions from § 301.75–6 in the March
2007 interim rule.
We acknowledge that the inspections
for citrus canker mandated by Florida’s
Department of Agriculture and
Consumer Services/Division of Plant
Industry (FDACS/DPI) serve to lessen
the risk of the spread of Xcc to
unaffected producers within the
quarantined area. However, we have
determined that these inspections do
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not adequately address the risk
associated with the interstate movement
of citrus nursery stock from Florida.
The inspections are, however, part of
a larger program for citrus nursery stock
produced in the State of Florida, the
Citrus Nursery Stock Certification
Program. We address the program itself
in greater detail below, in the section
entitled ‘‘Comments Proposing Florida’s
Citrus Nursery Stock Certification
Program as an Alternative to
Rulemaking.’’
Finally, we recognize that the
biosecurity measures stock growers
employ often reduce the likelihood that
their plants may become infected with
citrus canker. However, because these
measures are voluntary, we cannot
assume that all producers within
Florida adhere to these standards. This
is important, because, as we mentioned
above, the movement of citrus nursery
stock is considered to be one of the most
likely pathways for the spread of Xcc.
Standards and protocols that may not be
uniformly followed do not adequately
address the risk associated with the
interstate movement of citrus nursery
stock from an area quarantined for citrus
canker.
Several commenters suggested that
the interim rule should be withdrawn
because citrus canker poses no human
health risk and is not transmissible to
plants other than citrus. Similarly, three
commenters stated that the rule should
be withdrawn because, they stated,
APHIS’ basis for issuing the rule was
solely to protect and promote the
economic interests of other commercial
citrus-producing areas, rather than to
prevent the further dissemination of Xcc
within the United States.
As noted above, our intent in issuing
the interim rule was to clarify our longstanding historical practice and sciencebased policy of prohibiting the
movement of nursery stock from areas
quarantined for citrus canker. The
existing prohibitions on the interstate
movement of citrus nursery stock from
areas quarantined because of citrus
canker fall within the authority
delegated to APHIS under the PPA. The
PPA authorizes APHIS to take measures
to prohibit or restrict movement in
interstate commerce of any plant or
plant product, if we determine that the
prohibition or restriction is necessary to
prevent the dissemination of a plant
disease within the United States. Citrus
canker is highly transmissible to citrus
plants and can cause extensive damage
to affected plants. Furthermore, as we
mentioned above, citrus nursery stock is
considered to be one of the most likely
pathways for the introduction of citrus
canker to previously unaffected areas.
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Moreover, we note that it was
likewise appropriate for APHIS, in
particular, to take such measures, since
it was in keeping with our mission as an
Agency to protect American agriculture.
One commenter stated that the
interim rule should be withdrawn
because APHIS lacked adequate
personnel to enforce it and should be
replaced with a risk-based approach that
assigns personnel to the pathways
through which citrus canker is most
likely to travel.
We are confident that we have
adequate personnel to effectively
enforce this rule, which does not
impose new prohibitions on the
interstate movement of citrus nursery
stock but rather clarifies our longstanding historical practice and sciencebased policy of prohibiting the
movement of nursery stock from areas
quarantined for citrus canker.
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Comments Proposing Florida’s Citrus
Nursery Stock Certification Program as
an Alternative to Rulemaking
Several commenters stated that
APHIS had not adequately considered
less stringent measures to prevent the
spread of citrus canker through the
interstate movement of citrus nursery
stock. Many of the commenters asserted
that Florida’s Citrus Nursery Stock
Certification Program, which is
designed to prevent the spread of citrus
canker and citrus greening within and
from that State and which was enacted
by the State of Florida on December 26,
2006, would provide an effective, yet
less restrictive, alternative to the
regulations established by the interim
rule.10 They pointed out that:
• The certification program requires
all citrus nursery stock propagations
after January 1, 2007, to be made within
structures approved by FDACS/DPI to
prevent the introduction of citrus
canker, citrus greening, and the Asian
citrus psyllid, a vector of citrus
greening;
• The program contains provisions to
prohibit the sale and distribution of
nursery stock not grown in a structure
and a site approved by FDACS/DPI;
• The program requires all nurseries
in which citrus nursery stock is grown
after December 26, 2006, to be fenced
and to limit access to those areas within
the nursery which contain citrus
nursery stock;
• The program requires the
decontamination of all personnel and
equipment before entering a nursery;
10 To view Florida’s regulations implementing the
Citrus Nursery Stock Certification Program, go to
https://www.flrules.org/gateway/
ChapterHome.asp?Chapter=5B-62.
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• The program requires all parent
trees from which propagations are taken
after December 26, 2006, to be tested
and found free of citrus canker, citrus
greening, and other citrus pathogens
that are transmissible through grafting;
and
• The program requires nurseries to
be inspected every 30 days, and
allocates funds and personnel to this
end.
The commenters asserted that these
safeguards, collectively, provide
adequate phytosanitary security to allow
the interstate movement of citrus
nursery stock from the quarantined area.
To consider these comments, we
examined the various provisions of the
certification program. We determined
that certain provisions of Florida’s
program did not adequately address the
risk of the spread of citrus canker or
citrus greening from Florida. For
example, the program exempts retail
outlets and retail sales areas having
fewer than 500 citrus plants in stock at
any given time from having to place
nursery stock in screened enclosures or
even segregate it from other plants onsite; does not regulate citrus plants
propagated in nurseries prior to
implementation of the program,
regardless of the phytosanitary
conditions under which the plants were
propagated; and does not require that all
such plants be inspected for freedom
from citrus canker or citrus greening
prior to sale. Moreover, the State
regulations that implement the Citrus
Nursery Stock Certification Program do
not provide a scientific rationale for not
addressing the risk associated with
these provisions. For these reasons, we
came to the conclusion that Florida’s
program was not an adequate alternative
to the restrictions on the interstate
movement of nursery stock in our
regulations.
In response to this determination,
Florida requested APHIS’ assistance in
crafting a systems approach that would
provide adequate phytosanitary
measures to allow the interstate
movement of citrus nursery stock from
areas quarantined for citrus canker,
citrus greening, and Asian citrus
psyllid, a vector of citrus greening, to
areas of the United States that APHIS
has not designated as commercial citrusproducing areas. To this end, APHIS
convened a technical working group,
which recommended sourcing from a
pest-exclusionary production facility
and testing for all germplasm and
budwood destined for propagation in
nurseries within the State, construction
and maintenance of pest-exclusionary
production facilities and buffer zones,
safeguarding, routine inspections,
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cleaning and disinfection protocols, and
other measures that would be sufficient
to address the concerns raised in our
earlier evaluation.
As a result of this collaboration with
APHIS, FDACS/DPI presented a draft
systems approach to us for evaluation in
December 2008. The mitigation
measures proposed in that systems
approach appear consistent with the
recommendations of the technical
working group; therefore, we have
reason to believe that they may provide
a basis for allowing the limited
interstate movement of citrus nursery
stock from Florida. However, because
citrus nursery stock is known to be a
high-risk pathway for citrus canker and
citrus greening, we have decided to
initiate a formal assessment of the risk
associated with interstate movement of
citrus nursery stock under the
provisions of the systems approach. If
the assessment finds the systems
approach to provide effective mitigation
measures, we will initiate rulemaking to
codify the approach. Until such time,
we will retain the existing prohibition
on the interstate movement of citrus
nursery stock from areas quarantined for
citrus canker. Therefore, we are making
no change in response to these
comments.
One commenter suggested that if we
did not recognize Florida’s program as
an alternative to rulemaking, we needed
to amend the regulations to establish a
similar, federally regulated certification
program. The commenter stated that,
without such a program, our citrus
canker regulations would be
inconsistent with APHIS regulations
governing other plant diseases, such as
Ralstonia solanacearum and
Phytophthora ramorum, which allow
the importation or interstate movement
of plants or plant parts from an area
quarantined for a disease if the plants
have been produced under conditions
that prevent those plants from being
infected with that disease.
We implemented those certification
programs based on an examination of
the severity and prevalence of each
specific disease, its likelihood of
transmission, and the efficacy of various
mitigation measures at preventing its
spread. As noted above, we are
currently conducting such an
examination for the interstate movement
of citrus nursery stock for areas
quarantined for citrus canker and citrus
greening.
Two commenters suggested that, in
greatly restricting the movement of
citrus nursery stock from Florida,
APHIS had effectively encouraged
States that are not commercial citrusproducing States and that have few or
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no regulations governing citrus products
to promote commercial citrus
production. As evidence, one of the
commenters stated that Georgia has
initiated plans to produce citrus nursery
stock within that State as a result of the
interim rule without also establishing
production requirements equivalent to
those required by the State governments
of other commercial citrus-producing
areas. Poorly regulated production of
citrus nursery stock, both commenters
asserted, constitutes a significant
pathway for the spread of citrus canker
and other citrus diseases.
The temperate climate of most States
not listed in the regulations as
commercial citrus-producing States
renders outdoor commercial citrus
production impracticable. Current
indoor citrus production in those States,
whether commercial or noncommercial,
is minimal.
We do recognize that Georgia and
several other States that are not listed in
the regulations as commercial citrusproducing States contain areas whose
climates may be conducive to outdoor
commercial citrus production. However,
if these States begin commercial citrus
production, we will designate them as
commercial citrus-producing areas in
our regulations and if citrus canker or
any other quarantine disease of citrus is
discovered in any of these States, we
will take appropriate measures to
eradicate the disease or control its
spread.
Comments Proposing Changes to the
Interim Rule
Several commenters suggested that
APHIS should allow movement of
regulated citrus nursery stock to States
with a temperate climate that are not
designated as commercial citrusproducing States. Citrus nursery stock
moved to these States, they asserted, is
primarily destined for outdoor use
during the summer months or for
ornamental, indoor use. If destined for
outdoor use, diseased nursery stock
would not survive the winter in an area
with a temperate climate, and both the
plant and Xcc would perish. If destined
for indoor use, the possibility for
disease aggregation or dispersion would
be minimal.
We are making no changes to the
interim rule in response to these
comments. Allowing the movement of
citrus nursery stock to areas of the
United States not designated as
commercial citrus-producing areas does
not preclude the subsequent movement
of the plants to commercial citrusproducing areas. Since nursery stock is
not intended for immediate
consumption, and can survive for years
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after it leaves the commercial
distribution system, the possibility of
this subsequent movement must be
taken into consideration. Nor does the
commenters’ suggestion address the
possible airborne dispersion of Xcc
while the plants are being moved. When
blown by the wind, the bacteria
associated with citrus canker have been
shown to survive at distances of more
than 100 feet from their host.13
Moreover, while we are confident that
we have sufficient personnel to ensure
that producers in the quarantined area
are adhering to the provisions of this
rule, we do not have sufficient
personnel to monitor every possible
commercial or non-commercial pathway
in each State that could result in the
movement of infected but asymptomatic
citrus nursery stock to other areas of the
country.
Several commenters suggested that
the final rule be amended to explicitly
forbid the smuggling of nursery stock
from an area quarantined for citrus
canker.
Any movement of citrus nursery stock
other than those movements authorized
by the regulations is prohibited.
Individuals who engage in such
movements may be subject to both civil
and criminal penalties.
Another commenter expressed
concern about the exception in the
interim rule allowing the regulated
movement of nursery stock for
immediate export. Such movement, the
commenter suggested, appears to
present a risk of introducing citrus
canker into unaffected areas of the
United States or other countries where
the disease is not known to occur. The
commenter suggested that APHIS either
prohibit such movement or allow the
interstate movement of citrus nursery
stock, subject to the same disease
control measures that allow its
exportation.
In the August 2006 interim rule that
quarantined the entire State of Florida
for citrus canker, we established
provisions under which citrus fruit and
nursery stock from an area quarantined
for citrus canker could be moved
interstate for immediate export. We
adopted these provisions to provide a
degree of regulatory relief to growers,
packers, and others who were adversely
affected by new restrictions on the
movement of citrus articles imposed by
the rule.
13 See Gottwald, T.R., Graham, J.H., and Schubert,
T.S., 2002. Citrus canker, The pathogen and its
impact. Plant Health Progress doi: 10.1094/PHP–
2002–0812–01–RV. Available at https://
www.plantmanagementnetwork.org/pub/php/
review/citruscanker/.
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16101
Any nursery stock moved interstate
for immediate export must be
accompanied by a limited permit and
must be moved in a sealed conveyance
directly to the port of export. We have
determined that these requirements
adequately address the risk of disease
spread while the articles are in transit
within the United States to their port of
export.
Foreign countries set their own
requirements for importing
commodities, including citrus nursery
stock, from the United States, and thus
may choose whether or not to accept
nursery stock from areas quarantined for
citrus canker.
Two commenters expressed concern
that nursery stock imported into the
United States could be infected with
citrus canker or harbor vectors of the
disease. These commenters suggested
that APHIS consider restricting or
prohibiting the importation of citrus
nursery stock and other citrus products
into the United States.
The regulations in 7 CFR 319.19
prohibit the importation of citrus
nursery stock from other countries,
unless the nursery stock is imported for
experimental or scientific purposes or
imported into Guam. Similarly, the
regulations in 7 CFR 319.28 prohibit the
importation of citrus fruit and peels
from most countries quarantined for
citrus canker, with certain, limited
exceptions.
Comments Regarding the Interstate
Movement of Calamondins and
Kumquats
In the interim rule, we allowed the
interstate movement of calamondin and
kumquat plants under a protocol
designed to ensure that they were free
of the disease prior to movement. The
protocol allowed interstate movement if
the following conditions were met:
• The plants are own-root-only, and
have not been grafted or budded.
• The plants are started, are grown,
and have been maintained solely at the
nursery from which they will be moved
interstate.
• If the plants are not grown from
seed, then the cuttings used for
propagation of the plants are taken from
plants located on the same nursery
premises or from another nursery that is
eligible to produce calamondin and
kumquat plants for interstate movement
under the requirements of the
regulations. Cuttings may not be
obtained from properties where citrus
canker is present.
• All citrus plants at the nursery
premises have undergone State
inspection and have been found to be
free of citrus canker by State authorities
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Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Rules and Regulations
no less than three times, at 30- to 45-day
intervals, prior to movement, with the
most recent inspection being within 30
days of the date on which the plants are
removed and packed for shipment.
• All vehicles, equipment, and other
articles used in providing inspection,
maintenance, or related services in the
nursery, as well as all personnel
employed in providing inspection,
maintenance, or related services in the
nursery, must be treated in accordance
with the regulations before entering the
nursery in order to prevent the
introduction of citrus canker.
• If citrus canker is found in the
nursery, all regulated plants and plant
material must be removed from the
nursery and all areas of the nursery’s
facilities where plants are grown and all
associated equipment and tools used at
the nursery must be treated in
accordance with the regulations in order
for the nursery to be eligible to produce
calamondin and kumquat plants to be
moved interstate under the protocol.
Fifteen days after these actions are
completed, the nursery may receive new
calamondin and kumquat seed or
cuttings from a nursery that is eligible
to produce calamondin and kumquat
plants for interstate movement.
• The plants, except for plants that
are hermetically sealed in plastic bags
before leaving the nursery, are
completely enclosed in containers or
vehicle compartments during movement
through the quarantined area.
• The plants are accompanied by a
limited permit displayed on a plastic or
metal tag attached to the outside of the
articles or the outside of their
containers, stating that they are not to be
distributed to commercial citrusproducing areas. The statement must
also be displayed on the outside of the
shipping containers used to transport
the plants, and the limited permit must
be attached to the bill of lading or any
other shipping document.
In the interim rule, we stated that we
had implemented a substantively
similar protocol in 1989, which we
removed from the regulations in 1990
without giving a reason for doing so. We
also stated that, in issuing our August
2006 interim rule quarantining the
entire State of Florida for citrus canker,
we had reexamined the movement of
calamondin and kumquat plants and
decided to allow their movement. We
allowed this movement through
administrative action. Our intent,
therefore, was to modify this 1989
protocol slightly and codify it in the
regulations, in order to provide stock
growers with a degree of relief
appropriate under the circumstances
from restrictions imposed by the interim
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rule and to mitigate the economic
impact associated with the August 2006
quarantine.
In deciding to reinstitute the protocol,
we cited a peer-reviewed article on
citrus canker.14 Although we did not
cite it in the interim rule, we also relied
upon the views of a 1987 panel of plant
pathologists and other experts in the
field of diseases affecting citrus
regarding the high degree of biological
resistance to Xcc that the calamondin
and kumquat plants appeared to
possess.
Several commenters expressed
concerns regarding the protocol. Noting
that the scientific literature cited in the
interim rule did not indicate that
calamondins and kumquats are entirely
immune to citrus canker, one
commenter suggested that APHIS had
effectively adopted a risk-based
approach for the interstate movement of
these two plants. The commenter stated
that APHIS had provided no evidence in
the interim rule that the calamondin
and kumquat protocol precludes the
artificial spread of citrus canker through
the interstate movement of these plants,
nor had APHIS considered similar
protocols by which other citrus articles
more susceptible to citrus canker might
be moved interstate. The same
commenter stated that calamondins and
kumquats are not as resistant to citrus
canker as the interim rule suggested.
Two other commenters reiterated this
last point, and added that most
nurseries do not take more restrictive
biosecurity measures to limit the
exposure of calamondins and kumquats
to citrus canker than they impose on
other citrus nursery stock. All three
commenters suggested that APHIS
reevaluate the protocol or consider
similar protocols to allow the interstate
movement of other citrus nursery stock.
In response to these comments,
APHIS reexamined the results of
surveys and inspections conducted on
citrus nursery stock within the
quarantined area and on calamondin
and kumquat plants growing in groves
and residential settings within that area.
While no infected kumquat plants were
reported, in March 2006, State officials
and PPQ inspectors had reported
finding a nursery with several
calamondin plants infected with citrus
canker. Plant pathologists from FDACS/
DPI subsequently conducted laboratory
testing of 48 samples from these plants.
These tests confirmed the presence of
citrus canker in 47 of the samples.
In July 2007, in order to
independently assess the accuracy of
FDACS/DPI’s testing, APHIS collected
14 See
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footnote 13.
Frm 00006
Fmt 4700
Sfmt 4700
samples from 15 of the infected plants
and sent them to PPQ’s Center for Plant
Health Science and Technology for
corroborative testing. Officials there
examined the samples using two
different standard diagnostic methods.
Under both methods, each sample tested
positive for citrus canker. In addition,
the infected plants were confirmed to be
calamondin plants.
The protocol codified in the interim
rule, as well as the 1989 protocol on
which it was modeled, had been
predicated on calamondin and kumquat
plants being highly resistant to Xcc. As
a result of these positive samples, we
determined that calamondins were not
highly resistant, and that the interstate
movement of calamondin nursery stock,
even under the conditions of the
protocol, was a possible pathway for the
spread of citrus canker. Accordingly, we
decided that it would be prudent to
amend the regulations to remove
calamondin nursery stock from the
protocol in a final rule.
However, in order to provide the
public with an opportunity to comment
on this possible change, we reopened
the comment period for the interim rule,
in a document published in the Federal
Register on January 29, 2008 (73 FR
5085, Docket No. APHIS–2007–0032). In
that document, we specifically asked for
comments regarding calamondin plants
and the interstate movement protocol.
Several commenters pointed out that
the State inspections that discovered the
infected calamondin plants were
conducted before the implementation of
Florida’s Citrus Nursery Stock
Certification Program. The commenters
stated that calamondin plants grown
under the provisions of the program
cannot become infected with Xcc and
that calamondin plants should therefore
not be removed from the protocol.
As we mentioned above, we have
found the Citrus Nursery Stock
Certification Program does not
sufficiently address the risk associated
with the interstate movement of nursery
stock from the State of Florida, but we
are currently evaluating the adequacy of
a draft systems approach proposed by
the State. While we conduct our
evaluation, we consider it necessary to
maintain our long-standing policy
prohibiting the interstate movement of
citrus nursery stock from areas
quarantined for citrus canker. In
accordance with that policy and based
on our findings, we must consider
calamondin plants to be a host of citrus
canker and thus must prohibit their
interstate movement.
Other commenters suggested that we
should allow calamondin nursery stock
to be shipped to areas of the country
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mstockstill on PROD1PC66 with RULES
that have not been designated as
commercial citrus-producing areas.
We address the substantial risk
associated with the shipment of citrus
nursery stock to such areas above, in the
section entitled ‘‘Comments Proposing
Changes to the Interim Rule.’’
Accordingly, we are amending
§ 301.75–6 in this final rule to remove
calamondin from the protocol.
Wherever the text of that section has
referred to ‘‘calamondin and kumquats,’’
it will now refer only to ‘‘kumquats.’’
We are also amending § 301.75–12 in a
similar manner to reflect the removal of
calamondin.
Comments Concerning the Economic
Impact of the Interim Rule
Many commenters stated that the rule
had had a substantive effect on their
operations, or appeared to
disproportionately impact small
entities, and asked that APHIS include
such impacts in the economic analysis
in the final rule.
The interim rule codified existing
policies, but did not establish new
procedures for quarantine operations.
We determined that the rule therefore
had no new economic effect on any
entities.
Rather, it was our August 2006
interim rule quarantining the entire
State of Florida for citrus canker that
resulted in new economic effects on
entities involved in the production,
packing, and movement of citrus fruit
and nursery stock in that State. The
August 2006 interim rule included a
preliminary economic analysis of the
effects of the State-wide quarantine;
when we publish a final action
following that interim rule, we will
provide an updated and more
comprehensive analysis of those
economic effects.
However, this final rule does make a
substantive change in the regulations by
removing calamondins from eligibility
for interstate movement. Accordingly,
we examine the economic effects of that
action in this final rule under the
heading ‘‘Executive Order 12866 and
Regulatory Flexibility Act.’’
Therefore, for the reasons given in the
interim rule and in this document, we
are adopting the interim rule as a final
rule, with the changes discussed in this
document.
This final rule also affirms the
information contained in the interim
rule concerning Executive Orders 12372
and 12988.
Executive Order 12866 and Regulatory
Flexibility Act
This rule has been reviewed under
Executive Order 12866. The rule has
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16:45 Apr 08, 2009
Jkt 217001
been determined to be not significant for
the purposes of Executive Order 12866
and, therefore, has not been reviewed by
the Office of Management and Budget.
This final rule follows an interim rule
that amended the citrus canker
regulations by explicitly prohibiting,
with limited exceptions, the interstate
movement of regulated citrus nursery
stock from an area quarantined for citrus
canker. In the interim rule, we allowed
calamondin and kumquat plants to be
moved interstate from a quarantined
area in accordance with a protocol
designed to ensure their freedom from
citrus canker. In this final rule, we have
amended the protocol to exclude
calamondin plants.
According to Small Business
Administration (SBA) criteria, a nursery
(North American Industry Classification
System code 111422) is considered to be
a small entity if its annual receipts are
not more than $750,000. In 2003, there
were 1,360 nursery operators in the
State of Florida, 88 percent of which
were classified as small entities.15 Of
these 1,360 nurseries, 57 produced fruit
and nut nursery stock. Citrus nursery
stock producers fall within this larger
category of fruit and nut nursery stock
producers.
Although APHIS has not yet been able
to confirm the number of citrus nursery
stock producers in the State of Florida
currently engaged in calamondin
nursery stock production,
correspondence with State officials has
suggested that there are nine such
producers.16 There are, moreover, at
least five nurseries in the State that
engage exclusively in calamondin
propagation.17
The average size of the affected
nurseries is unknown. However, it is
reasonable to assume that most of the
nurseries are small entities, since the
vast majority of all nursery operators in
the State of Florida are small entities,
according to SBA standards.
On January 11, 2008, APHIS issued a
Federal Order designating the State of
Florida as an area quarantined for citrus
greening.18 In order to prevent the
spread of citrus greening to unaffected
areas of the United States, the order also
prohibited the interstate movement of
all citrus plants from the State of
15 Source: USDA, NASS, July 2004. ‘‘Nursery
Crops 2003 Summary.’’ Washington, DC.
16 Source: Florida’s Department of Agricultural
and Consumer Services/Bureau of Plant and Apiary
Inspection. Correspondence with APHIS, November
2007.
17 Ibid.
18 To view the Federal Order, go to https://www/
usda.gov/plant_health/plant_pest_info/
citrusgreening/downloads/pdf_files/federalorder01-11-2008.pdf.
PO 00000
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16103
Florida, as well as other citrus articles
that could serve as potential host
material for the citrus greening
bacterium, unless the articles were
destined for immediate export. Because
the interstate movement of calamondin
nursery stock other than for immediate
export is already prohibited under that
order, and because this rule does not
regulate the intrastate movement of
calamondin nursery stock, we expect
that the impact of this rule on those
producers will be minimal, at most.
Under these circumstances, the
Administrator of the Animal and Plant
Health Inspection Service has
determined that this action will not
have a significant economic impact on
a substantial number of small entities.
Paperwork Reduction Act
The March 2007 interim rule
contained information collection
requirements. On March 27, 2007, the
Office of Management and Budget
(OMB) approved the collection of
information with respect to the interim
rule under OMB control number 0579–
0317 (expires November 30, 2010).
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 rule, please contact Mrs. Celeste
Sickles, APHIS’ Information Collection
Coordinator, at (301) 851–2908.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant
diseases and pests, Quarantine,
Reporting and recordkeeping
requirements, Transportation.
Accordingly, the interim rule
amending 7 CFR part 301 that was
published at 72 FR 13423–13428 on
March 22, 2007, is adopted as a final
rule with the following changes:
■
PART 301—DOMESTIC QUARANTINE
NOTICES
1. The authority citation 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).
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§ 301.75–6
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Rules and Regulations
[Amended]
SUPPLEMENTARY INFORMATION:
2. Section 301.75–6 is amended as
follows:
■ a. In paragraph (a), by removing the
words ‘‘calamondin and’’.
■ b. In the introductory text of
paragraph (b), by removing the words
‘‘Calamondin (Citrus mitus) and
kumquat’’ and adding the word
‘‘Kumquat’’ in their place.
■ c. In paragraph (b)(3), by removing the
words ‘‘calamondin and’’.
■ d. In paragraph (b)(6), by removing the
words ‘‘calamondin and’’.
■ e. In paragraph (b)(8), by removing the
words ‘‘calamondin or’’.
■
§ 301.75–12
[Amended]
3. In § 301.75–12, the introductory
text of paragraph (b)(1) is amended by
removing the words ‘‘calamondin and’’.
■
Done in Washington, DC, this 6th day of
April 2009.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E9–8103 Filed 4–8–09; 8:45 am]
BILLING CODE 3410–34–P
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 392
[Docket No. 00–019F; FDMS Docket No.
FSIS–2005–0020]
RIN 0583–AC81
Petitions for Rulemaking
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AGENCY: Food Safety and Inspection
Service, USDA.
ACTION: Final rule.
SUMMARY: The Food Safety and
Inspection Service (FSIS) is amending
its administrative regulations to add a
new part that establishes regulations
governing the submission to FSIS of
petitions for rulemaking. The new
regulations supersede existing guidance
on the submission of petitions to FSIS
to issue, amend, or repeal its
regulations. FSIS is taking this action to
help ensure the filing of well-supported
petitions that contain information that
the Agency needs to proceed with
consideration of the requested
rulemaking in a timely manner.
DATES: Effective Date: June 8, 2009.
FOR FURTHER INFORMATION CONTACT:
Rachel Edelstein, Director, Policy
Issuances Division, Office of Policy and
Program Development, Food Safety and
Inspection Service, U.S. Department of
Agriculture; (202) 720–5627.
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Background
On January 12, 2006, FSIS published
a proposal in the Federal Register to
establish regulations governing the
submission to FSIS of petitions to issue,
amend, or repeal a regulation
administered by the Agency (71 FR
1988). As discussed in that proposed
rulemaking, FSIS had previously
published guidelines in 1993 on how to
submit petitions for rulemaking to the
Agency (58 FR 63570, December 2,
1993). Despite the existence of this
guidance, rulemaking petitions are
submitted to FSIS in various forms,
often without adequate data and
supporting documentation for FSIS to
properly evaluate the merits of the
requested action. The measures
proposed in the January 12, 2006,
proposed rule are designed to encourage
the filing of well-supported petitions
that contain information that the
Agency needs to evaluate a requested
rulemaking in a timely manner. The
comment period for the proposed rule
closed on March 12, 2006.
Comments and FSIS Response
FSIS received only one comment in
response to the January 12, 2006,
proposal. The comment was generally
supportive of the proposed regulations
but also expressed the view that when
preparing Notices and Directives, FSIS
should provide an opportunity for
public comment prior to the issuance of
these documents. According to the
comment, FSIS Notices and Directives
may have the same effect on the
industry as regulations. The comment
recommended that FSIS adopt a rule
that would specifically provide
opportunity for stakeholders to
participate in the development of these
documents.
The January 12, 2006, proposed rule
proposed to establish regulations for the
submission to FSIS of petitions for
rulemaking. Establishing a new process
for making draft FSIS Notices and
Directives available for comment is
outside the scope of this rulemaking.
Under this final rule, however, persons
may certainly petition the Agency to
issue, amend or repeal such documents.
The comment also stated that, when
evaluating petitions for rulemaking,
FSIS must take into account that small
and very small establishments have
limited resources and may not have
access to all of the data that FSIS
considers necessary to evaluate a
petition for rulemaking.
In the preamble to the proposed rule,
FSIS acknowledged that some small
entities may not have access to certain
PO 00000
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Fmt 4700
Sfmt 4700
data that is readily available to large
companies or industry trade
associations. As stated in the preamble,
the Agency will take these limitations
into consideration when it evaluates
petitions submitted by small entities.
The Final Rule
In this final rule FSIS is establishing
regulations governing the submission to
FSIS of petitions for rulemaking. As
noted above, the one comment
submitted in response to the January 12,
2006, proposed rule raised no objections
that were within the scope of the
proposed rulemaking. Therefore, FSIS is
finalizing the proposed rule without
changes.
As was proposed, FSIS is adding a
new part 392—Petitions for rulemaking
to title 9, subchapter D of the CFR. As
stated in § 392.1, part 392 contains
provisions governing the submission to
FSIS of petitions for rulemaking and
applies to all requests to initiate
rulemaking, except to the extent that
other provisions in the FSIS regulations
prescribe procedures for submitting
requests to amend a regulation. As
discussed in the preamble to the
proposed rule, § 392.1 includes this
exception because FSIS’ regulations
already contain procedures on how to
submit requests to amend certain
sections of the regulations. For example,
as noted in the proposal, a request to
amend the regulations to authorize a
new Reference Amount or Product
Category identified in 9 CFR 317.312(b)
and 381.412(b) must be submitted as a
labeling application in accordance with
the provisions of 9 CFR 317.312(g) and
381.412(g).
Section 392.2 defines a ‘‘petition’’ as
a written request to issue, amend, or
repeal a regulation administered by the
Agency. Section 392.2 also provides that
a request to issue, amend, or repeal a
document that interprets a regulation
administered by the Agency, such as an
FSIS Directive, Notice, or compliance
guide, may be made by petition.
Section 392.3 describes the
information that a petition is required to
contain to be considered by FSIS.
Section 392.3(a) requires that a petition
include the name, address and
telephone number, and e-mail address
(if available) of the person submitting
the petition. Section 392.3(b) requires
that a petition contain a full statement
of the action requested by the petitioner,
including the citation and exact
wording of any existing regulation
affected by the requested action. Section
392.3(c) requires that a petition include
a statement of the factual and legal basis
for the requested action, including all
relevant information known to the
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]]>Agencies
[Federal Register Volume 74, Number 67 (Thursday, April 9, 2009)]
[Rules and Regulations]
[Pages 16097-16104]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8103]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Rules
and Regulations
[[Page 16097]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. APHIS-2007-0032]
RIN 0579-AC38
Citrus Canker; Interstate Movement of Regulated Nursery Stock
From Quarantined Areas
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are adopting as a final rule, with one change, an interim
rule that amended the citrus canker regulations to explicitly prohibit,
with limited exceptions, the interstate movement of regulated nursery
stock from a quarantined area. The interim rule provided two exceptions
to this prohibition, one that allowed nursery stock to be moved
interstate for immediate export under certain conditions and another
that allowed calamondin and kumquat plants to be moved interstate in
accordance with a protocol designed to ensure their freedom from citrus
canker. Our decision to provide for the interstate movement of
calamondin and kumquat plants was based on their apparent resistance to
citrus canker infection. However, since the publication of the interim
rule, we have confirmed that 47 calamondin plants growing in an area
quarantined for citrus canker were infected with the disease.
Therefore, this final rule amends the protocol to exclude calamondin
plants. The interim rule was necessary to clarify our regulations and
to address the risk associated with the interstate movement of
regulated nursery stock from areas quarantined for citrus canker.
DATES: Effective Date: May 11, 2009.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Senior Operations
Officer, Emergency and Domestic Programs, Plant Protection and
Quarantine, APHIS, 4700 River Road, Unit 137, Riverdale, MD 20737-1231;
(301) 734-8899.
SUPPLEMENTARY INFORMATION:
Background
Under section 412(a) of the Plant Protection Act (7 U.S.C. 7701 et
seq., referred to below as the PPA), the Secretary of Agriculture may
prohibit or restrict the movement in interstate commerce of any plant
or plant product, if the Secretary determines that the prohibition or
restriction is necessary to prevent the dissemination of a plant
disease within the United States. Under the Act, the Secretary may also
issue regulations requiring plants and plant products moved in
interstate commerce to be subject to remedial measures determined to be
necessary to prevent the spread of a plant disease or requiring the
objects to be accompanied by a permit issued by the Secretary prior to
movement.
Citrus canker is a plant disease that is caused by the bacterium
Xanthomonas citri subsp. citri (referred to below as Xcc) that affects
plants and plant parts of citrus and citrus relatives (Family
Rutaceae). Citrus canker can cause defoliation and other serious damage
to the leaves and twigs of susceptible plants. It can also cause
lesions on the fruit of infected plants, which render the fruit
unmarketable, and cause infected fruit to drop from the trees before
reaching maturity. The aggressive A (Asiatic) strain of citrus canker
can infect susceptible plants rapidly and lead to extensive economic
losses in commercial citrus-producing areas. Citrus canker is only
known to be present in the United States in the State of Florida.
The regulations to prevent the interstate spread of citrus canker
are contained in ``Subpart--Citrus Canker'' (7 CFR 301.75-1 through
301.75-14, referred to below as the regulations). The regulations
restrict the interstate movement of regulated articles from and through
areas quarantined because of citrus canker. Regulated articles are
plants and plant parts of all species, clones, cultivars, strains,
varieties, or hybrids of the genera Citrus and Fortunella, and all
clones, cultivars, strains, varieties and hybrids of the species
Clausena lansium and Poncirus trifoliata. Plants and plant parts
include fruit, seed, grass clippings, plant clippings, tree clippings,
and nursery stock. The regulations also provide conditions under which
regulated fruit and regulated seed may be moved from quarantined areas.
Preventing the spread of citrus canker is of great importance, and
the regulations are therefore necessary, not only because of the
severity of the disease, but also because commercial citrus production
is of considerable significance to the U.S. agricultural economy. Since
2002, an average of 939,360 acres within the United States has been
devoted annually to citrus grown for commercial production.\1\ During
the same time period, these acres have produced, on average, more than
13 million tons of fresh citrus a year.\2\ The average estimated annual
value of citrus produced in the United States during that time period
was $2.55 billion (packinghouse door equivalent).
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\1\ Source: Florida Agricultural Statistic Service (FASS),
National Agricultural Statistics Service (NASS), USDA, ``Citrus
Summary 2006-2007,'' February 2008.
\2\ Data for 2002-2006 are derived from: NASS/USDA, ``Citrus
Fruits 2006 Summary,'' 2006. 2007 data are from: NASS/USDA, ``Citrus
Summary 2006-2007,'' February 2008.
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Florida accounts for the majority of commercial citrus produced in
the United States, but there is substantial commercial citrus
production in other States. Between 2002 and 2007, Arizona, California,
and Texas, three States that the United States Department of
Agriculture's (USDA's) Animal and Plant Health Inspection Service
(APHIS) has designated as commercial citrus-producing areas in Sec.
301.75-5, maintained, on average, 305,500 acres devoted to commercial
citrus production annually and produced an average of more than 3.64
million tons of fresh citrus articles each year.\3\
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\3\ Data for 2002-2006 are derived from: NASS/USDA, ``Citrus
Fruits 2006 Summary,'' 2006. 2007 data are from: NASS/USDA, ``Citrus
Summary 2006-2007,'' February 2008.
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Moreover, commercial citrus production in Florida has declined in
recent years, from approximately 11.5 million tons in 2002 to
approximately 7.8 million tons in 2006. The primary reason for this
decline was the exceptionally active hurricane seasons of 2004 and
2005, which were devastating to Florida's citrus
[[Page 16098]]
production. Not only was extensive damage to citrus plants wrought
during each hurricane, but the storms also widely disseminated diseases
affecting citrus, including citrus canker, within the State.
Before the 2004 and 2005 hurricane seasons, we had sought to
quarantine those areas within the State where the disease was found and
to promote eradication efforts, while allowing the normal movement of
regulated citrus articles from those areas within Florida where the
disease was not present. In areas quarantined for citrus canker, the
regulations required a number of measures prior to the interstate
movement of any regulated articles: Inspections at set intervals of all
regulated citrus plants and trees within the area, except indoor house
plants; treatment of all vehicles, equipment, personnel, and other
articles used in providing inspection, maintenance, harvesting, or
related services in any grove containing regulated plants or trees, as
well as in providing landscaping or lawn care services on any premises
containing regulated plants or regulated trees; and destruction of all
plants and trees within the area that were determined to be infected
with citrus canker, except plants and trees at nurseries and indoor
house plants.
We based this earlier approach on the localized nature of
quarantined areas within Florida during that time period. Such areas
were usually no greater than a county.\4\ Because of the relatively
small size of these quarantined areas, we were confident that this
approach would allow us to identify and quarantine newly infected areas
quickly enough to prevent the further spread of the disease within
Florida and to eradicate citrus canker within the State.
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\4\ In the decade preceding the end of the 2005 hurricane
season, APHIS issued three interim rules (61 FR 1519-1521, Docket
No. 95-086-1; 65 FR 53528-53531, Docket No. 00-036-1; 69 FR 55315-
55320, Docket No. 04-045-1) designating areas in Florida as
quarantined areas. Two of these three rules added counties or
portions of counties.
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However, after the hurricane seasons of 2004 and 2005, at one point
approximately 75 percent of all commercial citrus trees in the State
were located within 5 miles of a location where citrus canker had been
detected. It thus became apparent that, because of the size and
distribution of the newly affected areas, the existing approach would
no longer be adequate to eradicate the disease or prevent its spread
within Florida. Therefore, on January 10, 2006, APHIS announced that it
had determined that the established eradication program was no longer a
scientifically feasible option to address citrus canker within
Florida.\5\
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\5\ APHIS, Letter to Charles H. Bronson, Commissioner of
Agriculture, Florida Department of Agriculture and Consumer
Services, January 10, 2006.
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We later codified this decision in an interim rule \6\ effective
and published in the Federal Register on August 1, 2006 (71 FR 43345-
43352, Docket No. APHIS-2006-0114), in which we declared the State of
Florida a quarantined area for citrus canker and amended the
requirements for the movement of regulated citrus articles from
Florida.
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\6\ To view the interim rule and the comments we received, go to
https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0114.
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Specifically, in that rule, we moved provisions of the regulations
requiring inspections at set intervals of regulated plants and trees,
except indoor house plants; the treatment of articles used in providing
landscaping services; and the destruction of plants and trees, except
for plants and trees at nurseries and indoor house plants, from Sec.
301.75-6, which sets conditions that must be met in order for any
regulated articles to be moved interstate from a quarantined area, to
paragraph (d) of Sec. 301.75-4, which sets out conditions that must be
met in order for less than an entire State to be designated as a
quarantined area. We stated that these provisions were only appropriate
for a regulatory program focused on eradication, and thus were no
longer applicable to Florida.
After the publication of the August 2006 interim rule, it was
determined that the amendments that the 2006 interim rule made to Sec.
301.75-6 could be construed as allowing the interstate movement of
citrus nursery stock from an area quarantined for citrus canker. Citrus
nursery stock, however, is considered to be one of the most likely
pathways for the introduction of Xcc to previously unaffected areas.\7\
Therefore, we determined that it was necessary to amend the regulations
to clarify that such movement was not allowed. At the same time, we
recognized that there were many citrus producers within Florida who had
been adversely affected by the restrictions imposed by the interim
rule. Accordingly, we also sought to provide them with a degree of
regulatory relief appropriate under the circumstances.
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\7\ APHIS, ``Movement of Commercially Packed Citrus Fruit from
Citrus Canker Disease Quarantine Area: Revised Risk Management
Analysis,'' September 2007, ppg. 25-26. To view this document, go to
https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0022.
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As a result, in an interim rule \8\ effective March 16, 2007, and
published in the Federal Register on March 22, 2007 (72 FR 13423-13428,
Docket No. APHIS-2007-0032), we amended the regulations to explicitly
prohibit the movement of citrus nursery stock from an area quarantined
for citrus canker. This action was necessary to clarify our regulations
and address the risk associated with the interstate movement of nursery
stock from a quarantined area. The interim rule also included two
exceptions to the prohibition, one that allowed citrus nursery stock to
be moved interstate for immediate export, subject to certain
restrictions, and another that allowed calamondin and kumquat plants to
be moved interstate under a protocol designed to ensure their freedom
from citrus canker prior to movement.
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\8\ To view the interim rule or the comments we received, go to
https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0032.
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We solicited comments concerning the interim rule for 60 days
ending May 21, 2007. We subsequently reopened and extended the deadline
for comments until June 11, 2007, in a document published in the
Federal Register on May 23, 2007 (72 FR 28827, Docket No. APHIS-2007-
0032). For reasons we discuss below in the section entitled ``Comments
Regarding the Interstate Movement of Calamondins and Kumquats,'' we
reopened and extended the deadline for comments once more, until
February 28, 2008, in a document published in the Federal Register on
January 29, 2008 (73 FR 5085, Docket No. APHIS-2007-0032).
We received 18 comments by that date, from State departments of
agriculture, greenhouses, citrus nursery stock growers, brokers for
stock growers, and a plant board. The comments are discussed below by
topic.
General Comments on the Interim Rule
Two commenters stated that the interim rule contained no scientific
analysis evaluating the risks associated with the interstate movement
of citrus nursery stock from a quarantined area. In the absence of such
an analysis, the commenters suggested that APHIS had not adequately
examined the possible risks posed by such movement or the availability
of control measures that may mitigate or eliminate these risks. Because
of this, they stated that we ought to withdraw the interim rule.
Similarly, two commenters stated that APHIS had overstated the risk of
spread
[[Page 16099]]
of citrus canker associated with the interstate movement of nursery
stock from the State of Florida.
Our prohibition on the interstate movement of nursery stock
reflects the fact that the movement of citrus nursery stock has been
considered one of the most likely pathways for the spread of citrus
canker. In virtually every case worldwide where citrus canker has been
introduced into a previously unaffected area, it is considered likely
to have occurred through the movement of infected nursery stock.
Moreover, USDA has historically prohibited the interstate movement of
citrus nursery stock from areas quarantined because of citrus canker.
The purpose of the interim rule was therefore to make explicit our
long-standing historical practice and science-based policy of
prohibiting the interstate movement of citrus nursery stock from areas
quarantined for citrus canker. Because this prohibition was not new, we
did not prepare a risk assessment for the interim rule.
We also note that the dispersion of Xcc was widespread within the
State of Florida as a result of the 2004 and 2005 hurricane seasons and
that there were, consequently, many newly infected citrus plants within
the State, including citrus nursery stock. These two considerations
had, in fact, formed the basis for designating the entire State of
Florida as a quarantined area in August 2006.
In deciding within that same rule to codify a protocol that allowed
the interstate movement of calamondin and kumquat plants under certain
conditions, we relied on a peer-reviewed scientific article on citrus
canker and the long-standing, but informal, consensus of scientists
regarding the strong biological resistance of calamondins and kumquats
to Xcc.\9\ We have since obtained epidemiological results that indicate
that calamondins are not as resistant to citrus canker as we had
previously believed. We discuss this information in greater detail in
the section entitled ``Comments Regarding the Interstate Movement of
Calamondins and Kumquats.''
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\9\ We adopted a similar protocol in a final rule published in
the Federal Register on March 24, 1989 (54 FR 12175-12183, Docket
No. 88-105); we removed the protocol from the regulations, without
giving a reason for doing so, in a final rule published in the
Federal Register on September 11, 1990 (55 FR 37441-37453, Docket
No. 90-114).
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Several commenters questioned the need for the interim rule on
other grounds. Some stated that in Florida, the only State currently
quarantined for citrus canker, nursery inspections mandated by Federal
and State authorities suffice to prevent the movement of nursery stock
infected with citrus canker. Others asserted that the biosecurity
measures many nursery stock growers voluntarily undertake in order to
market their plants, beyond those required by Federal or State
regulations, provide adequate protection against the spread of citrus
canker through the movement of nursery stock.
There are currently no Federal regulations requiring the inspection
of citrus nursery stock in Florida. When an entire State has been
designated as an area quarantined for citrus canker, there are no
Federal regulations requiring inspection of citrus nursery stock within
that area. In the August 2006 interim rule that designated the entire
State of Florida as a quarantined area for citrus canker, we had
intended to remove any reference to inspections from Sec. 301.75-6
because that provision was appropriate only for a program focused on
eradication and conducted in a quarantined area smaller than a State.
The provision was therefore no longer appropriate for Florida, given
our January 2006 determination that the widespread dispersion of Xcc
that had occurred throughout the State as a result of the 2004 and 2005
hurricane seasons had rendered an eradication-based approach
unfeasible. Likewise, we recognized in 2006 that the provision more
appropriately belonged in Sec. 301.75-4, which contains provisions
under which an area less than an entire State may be designated as a
quarantined area for Xcc. Our intention in the August 2006 interim rule
was therefore to remove the provision from Sec. 301.75-6 and add it to
Sec. 301.75-4. While we did the latter, we did not do the former. Our
mistake in leaving the inspection provision in Sec. 301.75-6 is
demonstrated by the fact that, after publication of the August 2006
interim rule, Sec. 301.75-6 appeared not to require inspected plants
to yield negative results for the presence of citrus canker. Our
regulations could then be read to allow infected nursery stock, whether
visibly affected or asymptomatic, to be transported interstate. As
these provisions did not conform to our long-standing historical
practice and science-based policy, we removed the provisions from Sec.
301.75-6 in the March 2007 interim rule.
We acknowledge that the inspections for citrus canker mandated by
Florida's Department of Agriculture and Consumer Services/Division of
Plant Industry (FDACS/DPI) serve to lessen the risk of the spread of
Xcc to unaffected producers within the quarantined area. However, we
have determined that these inspections do not adequately address the
risk associated with the interstate movement of citrus nursery stock
from Florida.
The inspections are, however, part of a larger program for citrus
nursery stock produced in the State of Florida, the Citrus Nursery
Stock Certification Program. We address the program itself in greater
detail below, in the section entitled ``Comments Proposing Florida's
Citrus Nursery Stock Certification Program as an Alternative to
Rulemaking.''
Finally, we recognize that the biosecurity measures stock growers
employ often reduce the likelihood that their plants may become
infected with citrus canker. However, because these measures are
voluntary, we cannot assume that all producers within Florida adhere to
these standards. This is important, because, as we mentioned above, the
movement of citrus nursery stock is considered to be one of the most
likely pathways for the spread of Xcc. Standards and protocols that may
not be uniformly followed do not adequately address the risk associated
with the interstate movement of citrus nursery stock from an area
quarantined for citrus canker.
Several commenters suggested that the interim rule should be
withdrawn because citrus canker poses no human health risk and is not
transmissible to plants other than citrus. Similarly, three commenters
stated that the rule should be withdrawn because, they stated, APHIS'
basis for issuing the rule was solely to protect and promote the
economic interests of other commercial citrus-producing areas, rather
than to prevent the further dissemination of Xcc within the United
States.
As noted above, our intent in issuing the interim rule was to
clarify our long-standing historical practice and science-based policy
of prohibiting the movement of nursery stock from areas quarantined for
citrus canker. The existing prohibitions on the interstate movement of
citrus nursery stock from areas quarantined because of citrus canker
fall within the authority delegated to APHIS under the PPA. The PPA
authorizes APHIS to take measures to prohibit or restrict movement in
interstate commerce of any plant or plant product, if we determine that
the prohibition or restriction is necessary to prevent the
dissemination of a plant disease within the United States. Citrus
canker is highly transmissible to citrus plants and can cause extensive
damage to affected plants. Furthermore, as we mentioned above, citrus
nursery stock is considered to be one of the most likely pathways for
the introduction of citrus canker to previously unaffected areas.
[[Page 16100]]
Moreover, we note that it was likewise appropriate for APHIS, in
particular, to take such measures, since it was in keeping with our
mission as an Agency to protect American agriculture.
One commenter stated that the interim rule should be withdrawn
because APHIS lacked adequate personnel to enforce it and should be
replaced with a risk-based approach that assigns personnel to the
pathways through which citrus canker is most likely to travel.
We are confident that we have adequate personnel to effectively
enforce this rule, which does not impose new prohibitions on the
interstate movement of citrus nursery stock but rather clarifies our
long-standing historical practice and science-based policy of
prohibiting the movement of nursery stock from areas quarantined for
citrus canker.
Comments Proposing Florida's Citrus Nursery Stock Certification Program
as an Alternative to Rulemaking
Several commenters stated that APHIS had not adequately considered
less stringent measures to prevent the spread of citrus canker through
the interstate movement of citrus nursery stock. Many of the commenters
asserted that Florida's Citrus Nursery Stock Certification Program,
which is designed to prevent the spread of citrus canker and citrus
greening within and from that State and which was enacted by the State
of Florida on December 26, 2006, would provide an effective, yet less
restrictive, alternative to the regulations established by the interim
rule.\10\ They pointed out that:
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\10\ To view Florida's regulations implementing the Citrus
Nursery Stock Certification Program, go to https://www.flrules.org/gateway/ChapterHome.asp?Chapter=5B-62.
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The certification program requires all citrus nursery
stock propagations after January 1, 2007, to be made within structures
approved by FDACS/DPI to prevent the introduction of citrus canker,
citrus greening, and the Asian citrus psyllid, a vector of citrus
greening;
The program contains provisions to prohibit the sale and
distribution of nursery stock not grown in a structure and a site
approved by FDACS/DPI;
The program requires all nurseries in which citrus nursery
stock is grown after December 26, 2006, to be fenced and to limit
access to those areas within the nursery which contain citrus nursery
stock;
The program requires the decontamination of all personnel
and equipment before entering a nursery;
The program requires all parent trees from which
propagations are taken after December 26, 2006, to be tested and found
free of citrus canker, citrus greening, and other citrus pathogens that
are transmissible through grafting; and
The program requires nurseries to be inspected every 30
days, and allocates funds and personnel to this end.
The commenters asserted that these safeguards, collectively,
provide adequate phytosanitary security to allow the interstate
movement of citrus nursery stock from the quarantined area.
To consider these comments, we examined the various provisions of
the certification program. We determined that certain provisions of
Florida's program did not adequately address the risk of the spread of
citrus canker or citrus greening from Florida. For example, the program
exempts retail outlets and retail sales areas having fewer than 500
citrus plants in stock at any given time from having to place nursery
stock in screened enclosures or even segregate it from other plants on-
site; does not regulate citrus plants propagated in nurseries prior to
implementation of the program, regardless of the phytosanitary
conditions under which the plants were propagated; and does not require
that all such plants be inspected for freedom from citrus canker or
citrus greening prior to sale. Moreover, the State regulations that
implement the Citrus Nursery Stock Certification Program do not provide
a scientific rationale for not addressing the risk associated with
these provisions. For these reasons, we came to the conclusion that
Florida's program was not an adequate alternative to the restrictions
on the interstate movement of nursery stock in our regulations.
In response to this determination, Florida requested APHIS'
assistance in crafting a systems approach that would provide adequate
phytosanitary measures to allow the interstate movement of citrus
nursery stock from areas quarantined for citrus canker, citrus
greening, and Asian citrus psyllid, a vector of citrus greening, to
areas of the United States that APHIS has not designated as commercial
citrus-producing areas. To this end, APHIS convened a technical working
group, which recommended sourcing from a pest-exclusionary production
facility and testing for all germplasm and budwood destined for
propagation in nurseries within the State, construction and maintenance
of pest-exclusionary production facilities and buffer zones,
safeguarding, routine inspections, cleaning and disinfection protocols,
and other measures that would be sufficient to address the concerns
raised in our earlier evaluation.
As a result of this collaboration with APHIS, FDACS/DPI presented a
draft systems approach to us for evaluation in December 2008. The
mitigation measures proposed in that systems approach appear consistent
with the recommendations of the technical working group; therefore, we
have reason to believe that they may provide a basis for allowing the
limited interstate movement of citrus nursery stock from Florida.
However, because citrus nursery stock is known to be a high-risk
pathway for citrus canker and citrus greening, we have decided to
initiate a formal assessment of the risk associated with interstate
movement of citrus nursery stock under the provisions of the systems
approach. If the assessment finds the systems approach to provide
effective mitigation measures, we will initiate rulemaking to codify
the approach. Until such time, we will retain the existing prohibition
on the interstate movement of citrus nursery stock from areas
quarantined for citrus canker. Therefore, we are making no change in
response to these comments.
One commenter suggested that if we did not recognize Florida's
program as an alternative to rulemaking, we needed to amend the
regulations to establish a similar, federally regulated certification
program. The commenter stated that, without such a program, our citrus
canker regulations would be inconsistent with APHIS regulations
governing other plant diseases, such as Ralstonia solanacearum and
Phytophthora ramorum, which allow the importation or interstate
movement of plants or plant parts from an area quarantined for a
disease if the plants have been produced under conditions that prevent
those plants from being infected with that disease.
We implemented those certification programs based on an examination
of the severity and prevalence of each specific disease, its likelihood
of transmission, and the efficacy of various mitigation measures at
preventing its spread. As noted above, we are currently conducting such
an examination for the interstate movement of citrus nursery stock for
areas quarantined for citrus canker and citrus greening.
Two commenters suggested that, in greatly restricting the movement
of citrus nursery stock from Florida, APHIS had effectively encouraged
States that are not commercial citrus-producing States and that have
few or
[[Page 16101]]
no regulations governing citrus products to promote commercial citrus
production. As evidence, one of the commenters stated that Georgia has
initiated plans to produce citrus nursery stock within that State as a
result of the interim rule without also establishing production
requirements equivalent to those required by the State governments of
other commercial citrus-producing areas. Poorly regulated production of
citrus nursery stock, both commenters asserted, constitutes a
significant pathway for the spread of citrus canker and other citrus
diseases.
The temperate climate of most States not listed in the regulations
as commercial citrus-producing States renders outdoor commercial citrus
production impracticable. Current indoor citrus production in those
States, whether commercial or noncommercial, is minimal.
We do recognize that Georgia and several other States that are not
listed in the regulations as commercial citrus-producing States contain
areas whose climates may be conducive to outdoor commercial citrus
production. However, if these States begin commercial citrus
production, we will designate them as commercial citrus-producing areas
in our regulations and if citrus canker or any other quarantine disease
of citrus is discovered in any of these States, we will take
appropriate measures to eradicate the disease or control its spread.
Comments Proposing Changes to the Interim Rule
Several commenters suggested that APHIS should allow movement of
regulated citrus nursery stock to States with a temperate climate that
are not designated as commercial citrus-producing States. Citrus
nursery stock moved to these States, they asserted, is primarily
destined for outdoor use during the summer months or for ornamental,
indoor use. If destined for outdoor use, diseased nursery stock would
not survive the winter in an area with a temperate climate, and both
the plant and Xcc would perish. If destined for indoor use, the
possibility for disease aggregation or dispersion would be minimal.
We are making no changes to the interim rule in response to these
comments. Allowing the movement of citrus nursery stock to areas of the
United States not designated as commercial citrus-producing areas does
not preclude the subsequent movement of the plants to commercial
citrus-producing areas. Since nursery stock is not intended for
immediate consumption, and can survive for years after it leaves the
commercial distribution system, the possibility of this subsequent
movement must be taken into consideration. Nor does the commenters'
suggestion address the possible airborne dispersion of Xcc while the
plants are being moved. When blown by the wind, the bacteria associated
with citrus canker have been shown to survive at distances of more than
100 feet from their host.\13\
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\13\ See Gottwald, T.R., Graham, J.H., and Schubert, T.S., 2002.
Citrus canker, The pathogen and its impact. Plant Health Progress
doi: 10.1094/PHP-2002-0812-01-RV. Available at https://www.plantmanagementnetwork.org/pub/php/review/citruscanker/.
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Moreover, while we are confident that we have sufficient personnel
to ensure that producers in the quarantined area are adhering to the
provisions of this rule, we do not have sufficient personnel to monitor
every possible commercial or non-commercial pathway in each State that
could result in the movement of infected but asymptomatic citrus
nursery stock to other areas of the country.
Several commenters suggested that the final rule be amended to
explicitly forbid the smuggling of nursery stock from an area
quarantined for citrus canker.
Any movement of citrus nursery stock other than those movements
authorized by the regulations is prohibited. Individuals who engage in
such movements may be subject to both civil and criminal penalties.
Another commenter expressed concern about the exception in the
interim rule allowing the regulated movement of nursery stock for
immediate export. Such movement, the commenter suggested, appears to
present a risk of introducing citrus canker into unaffected areas of
the United States or other countries where the disease is not known to
occur. The commenter suggested that APHIS either prohibit such movement
or allow the interstate movement of citrus nursery stock, subject to
the same disease control measures that allow its exportation.
In the August 2006 interim rule that quarantined the entire State
of Florida for citrus canker, we established provisions under which
citrus fruit and nursery stock from an area quarantined for citrus
canker could be moved interstate for immediate export. We adopted these
provisions to provide a degree of regulatory relief to growers,
packers, and others who were adversely affected by new restrictions on
the movement of citrus articles imposed by the rule.
Any nursery stock moved interstate for immediate export must be
accompanied by a limited permit and must be moved in a sealed
conveyance directly to the port of export. We have determined that
these requirements adequately address the risk of disease spread while
the articles are in transit within the United States to their port of
export.
Foreign countries set their own requirements for importing
commodities, including citrus nursery stock, from the United States,
and thus may choose whether or not to accept nursery stock from areas
quarantined for citrus canker.
Two commenters expressed concern that nursery stock imported into
the United States could be infected with citrus canker or harbor
vectors of the disease. These commenters suggested that APHIS consider
restricting or prohibiting the importation of citrus nursery stock and
other citrus products into the United States.
The regulations in 7 CFR 319.19 prohibit the importation of citrus
nursery stock from other countries, unless the nursery stock is
imported for experimental or scientific purposes or imported into Guam.
Similarly, the regulations in 7 CFR 319.28 prohibit the importation of
citrus fruit and peels from most countries quarantined for citrus
canker, with certain, limited exceptions.
Comments Regarding the Interstate Movement of Calamondins and Kumquats
In the interim rule, we allowed the interstate movement of
calamondin and kumquat plants under a protocol designed to ensure that
they were free of the disease prior to movement. The protocol allowed
interstate movement if the following conditions were met:
The plants are own-root-only, and have not been grafted or
budded.
The plants are started, are grown, and have been
maintained solely at the nursery from which they will be moved
interstate.
If the plants are not grown from seed, then the cuttings
used for propagation of the plants are taken from plants located on the
same nursery premises or from another nursery that is eligible to
produce calamondin and kumquat plants for interstate movement under the
requirements of the regulations. Cuttings may not be obtained from
properties where citrus canker is present.
All citrus plants at the nursery premises have undergone
State inspection and have been found to be free of citrus canker by
State authorities
[[Page 16102]]
no less than three times, at 30- to 45-day intervals, prior to
movement, with the most recent inspection being within 30 days of the
date on which the plants are removed and packed for shipment.
All vehicles, equipment, and other articles used in
providing inspection, maintenance, or related services in the nursery,
as well as all personnel employed in providing inspection, maintenance,
or related services in the nursery, must be treated in accordance with
the regulations before entering the nursery in order to prevent the
introduction of citrus canker.
If citrus canker is found in the nursery, all regulated
plants and plant material must be removed from the nursery and all
areas of the nursery's facilities where plants are grown and all
associated equipment and tools used at the nursery must be treated in
accordance with the regulations in order for the nursery to be eligible
to produce calamondin and kumquat plants to be moved interstate under
the protocol. Fifteen days after these actions are completed, the
nursery may receive new calamondin and kumquat seed or cuttings from a
nursery that is eligible to produce calamondin and kumquat plants for
interstate movement.
The plants, except for plants that are hermetically sealed
in plastic bags before leaving the nursery, are completely enclosed in
containers or vehicle compartments during movement through the
quarantined area.
The plants are accompanied by a limited permit displayed
on a plastic or metal tag attached to the outside of the articles or
the outside of their containers, stating that they are not to be
distributed to commercial citrus-producing areas. The statement must
also be displayed on the outside of the shipping containers used to
transport the plants, and the limited permit must be attached to the
bill of lading or any other shipping document.
In the interim rule, we stated that we had implemented a
substantively similar protocol in 1989, which we removed from the
regulations in 1990 without giving a reason for doing so. We also
stated that, in issuing our August 2006 interim rule quarantining the
entire State of Florida for citrus canker, we had reexamined the
movement of calamondin and kumquat plants and decided to allow their
movement. We allowed this movement through administrative action. Our
intent, therefore, was to modify this 1989 protocol slightly and codify
it in the regulations, in order to provide stock growers with a degree
of relief appropriate under the circumstances from restrictions imposed
by the interim rule and to mitigate the economic impact associated with
the August 2006 quarantine.
In deciding to reinstitute the protocol, we cited a peer-reviewed
article on citrus canker.\14\ Although we did not cite it in the
interim rule, we also relied upon the views of a 1987 panel of plant
pathologists and other experts in the field of diseases affecting
citrus regarding the high degree of biological resistance to Xcc that
the calamondin and kumquat plants appeared to possess.
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\14\ See footnote 13.
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Several commenters expressed concerns regarding the protocol.
Noting that the scientific literature cited in the interim rule did not
indicate that calamondins and kumquats are entirely immune to citrus
canker, one commenter suggested that APHIS had effectively adopted a
risk-based approach for the interstate movement of these two plants.
The commenter stated that APHIS had provided no evidence in the interim
rule that the calamondin and kumquat protocol precludes the artificial
spread of citrus canker through the interstate movement of these
plants, nor had APHIS considered similar protocols by which other
citrus articles more susceptible to citrus canker might be moved
interstate. The same commenter stated that calamondins and kumquats are
not as resistant to citrus canker as the interim rule suggested.
Two other commenters reiterated this last point, and added that
most nurseries do not take more restrictive biosecurity measures to
limit the exposure of calamondins and kumquats to citrus canker than
they impose on other citrus nursery stock. All three commenters
suggested that APHIS reevaluate the protocol or consider similar
protocols to allow the interstate movement of other citrus nursery
stock.
In response to these comments, APHIS reexamined the results of
surveys and inspections conducted on citrus nursery stock within the
quarantined area and on calamondin and kumquat plants growing in groves
and residential settings within that area. While no infected kumquat
plants were reported, in March 2006, State officials and PPQ inspectors
had reported finding a nursery with several calamondin plants infected
with citrus canker. Plant pathologists from FDACS/DPI subsequently
conducted laboratory testing of 48 samples from these plants. These
tests confirmed the presence of citrus canker in 47 of the samples.
In July 2007, in order to independently assess the accuracy of
FDACS/DPI's testing, APHIS collected samples from 15 of the infected
plants and sent them to PPQ's Center for Plant Health Science and
Technology for corroborative testing. Officials there examined the
samples using two different standard diagnostic methods. Under both
methods, each sample tested positive for citrus canker. In addition,
the infected plants were confirmed to be calamondin plants.
The protocol codified in the interim rule, as well as the 1989
protocol on which it was modeled, had been predicated on calamondin and
kumquat plants being highly resistant to Xcc. As a result of these
positive samples, we determined that calamondins were not highly
resistant, and that the interstate movement of calamondin nursery
stock, even under the conditions of the protocol, was a possible
pathway for the spread of citrus canker. Accordingly, we decided that
it would be prudent to amend the regulations to remove calamondin
nursery stock from the protocol in a final rule.
However, in order to provide the public with an opportunity to
comment on this possible change, we reopened the comment period for the
interim rule, in a document published in the Federal Register on
January 29, 2008 (73 FR 5085, Docket No. APHIS-2007-0032). In that
document, we specifically asked for comments regarding calamondin
plants and the interstate movement protocol.
Several commenters pointed out that the State inspections that
discovered the infected calamondin plants were conducted before the
implementation of Florida's Citrus Nursery Stock Certification Program.
The commenters stated that calamondin plants grown under the provisions
of the program cannot become infected with Xcc and that calamondin
plants should therefore not be removed from the protocol.
As we mentioned above, we have found the Citrus Nursery Stock
Certification Program does not sufficiently address the risk associated
with the interstate movement of nursery stock from the State of
Florida, but we are currently evaluating the adequacy of a draft
systems approach proposed by the State. While we conduct our
evaluation, we consider it necessary to maintain our long-standing
policy prohibiting the interstate movement of citrus nursery stock from
areas quarantined for citrus canker. In accordance with that policy and
based on our findings, we must consider calamondin plants to be a host
of citrus canker and thus must prohibit their interstate movement.
Other commenters suggested that we should allow calamondin nursery
stock to be shipped to areas of the country
[[Page 16103]]
that have not been designated as commercial citrus-producing areas.
We address the substantial risk associated with the shipment of
citrus nursery stock to such areas above, in the section entitled
``Comments Proposing Changes to the Interim Rule.''
Accordingly, we are amending Sec. 301.75-6 in this final rule to
remove calamondin from the protocol. Wherever the text of that section
has referred to ``calamondin and kumquats,'' it will now refer only to
``kumquats.'' We are also amending Sec. 301.75-12 in a similar manner
to reflect the removal of calamondin.
Comments Concerning the Economic Impact of the Interim Rule
Many commenters stated that the rule had had a substantive effect
on their operations, or appeared to disproportionately impact small
entities, and asked that APHIS include such impacts in the economic
analysis in the final rule.
The interim rule codified existing policies, but did not establish
new procedures for quarantine operations. We determined that the rule
therefore had no new economic effect on any entities.
Rather, it was our August 2006 interim rule quarantining the entire
State of Florida for citrus canker that resulted in new economic
effects on entities involved in the production, packing, and movement
of citrus fruit and nursery stock in that State. The August 2006
interim rule included a preliminary economic analysis of the effects of
the State-wide quarantine; when we publish a final action following
that interim rule, we will provide an updated and more comprehensive
analysis of those economic effects.
However, this final rule does make a substantive change in the
regulations by removing calamondins from eligibility for interstate
movement. Accordingly, we examine the economic effects of that action
in this final rule under the heading ``Executive Order 12866 and
Regulatory Flexibility Act.''
Therefore, for the reasons given in the interim rule and in this
document, we are adopting the interim rule as a final rule, with the
changes discussed in this document.
This final rule also affirms the information contained in the
interim rule concerning Executive Orders 12372 and 12988.
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.
This final rule follows an interim rule that amended the citrus
canker regulations by explicitly prohibiting, with limited exceptions,
the interstate movement of regulated citrus nursery stock from an area
quarantined for citrus canker. In the interim rule, we allowed
calamondin and kumquat plants to be moved interstate from a quarantined
area in accordance with a protocol designed to ensure their freedom
from citrus canker. In this final rule, we have amended the protocol to
exclude calamondin plants.
According to Small Business Administration (SBA) criteria, a
nursery (North American Industry Classification System code 111422) is
considered to be a small entity if its annual receipts are not more
than $750,000. In 2003, there were 1,360 nursery operators in the State
of Florida, 88 percent of which were classified as small entities.\15\
Of these 1,360 nurseries, 57 produced fruit and nut nursery stock.
Citrus nursery stock producers fall within this larger category of
fruit and nut nursery stock producers.
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\15\ Source: USDA, NASS, July 2004. ``Nursery Crops 2003
Summary.'' Washington, DC.
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Although APHIS has not yet been able to confirm the number of
citrus nursery stock producers in the State of Florida currently
engaged in calamondin nursery stock production, correspondence with
State officials has suggested that there are nine such producers.\16\
There are, moreover, at least five nurseries in the State that engage
exclusively in calamondin propagation.\17\
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\16\ Source: Florida's Department of Agricultural and Consumer
Services/Bureau of Plant and Apiary Inspection. Correspondence with
APHIS, November 2007.
\17\ Ibid.
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The average size of the affected nurseries is unknown. However, it
is reasonable to assume that most of the nurseries are small entities,
since the vast majority of all nursery operators in the State of
Florida are small entities, according to SBA standards.
On January 11, 2008, APHIS issued a Federal Order designating the
State of Florida as an area quarantined for citrus greening.\18\ In
order to prevent the spread of citrus greening to unaffected areas of
the United States, the order also prohibited the interstate movement of
all citrus plants from the State of Florida, as well as other citrus
articles that could serve as potential host material for the citrus
greening bacterium, unless the articles were destined for immediate
export. Because the interstate movement of calamondin nursery stock
other than for immediate export is already prohibited under that order,
and because this rule does not regulate the intrastate movement of
calamondin nursery stock, we expect that the impact of this rule on
those producers will be minimal, at most.
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\18\ To view the Federal Order, go to https://www/usda.gov/plant_health/plant_pest_info/citrusgreening/downloads/pdf_files/federalorder-01-11-2008.pdf.
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Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
The March 2007 interim rule contained information collection
requirements. On March 27, 2007, the Office of Management and Budget
(OMB) approved the collection of information with respect to the
interim rule under OMB control number 0579-0317 (expires November 30,
2010).
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 rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
0
Accordingly, the interim rule amending 7 CFR part 301 that was
published at 72 FR 13423-13428 on March 22, 2007, is adopted as a final
rule with the following changes:
PART 301--DOMESTIC QUARANTINE NOTICES
0
1. The authority citation 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).
[[Page 16104]]
Sec. 301.75-6 [Amended]
0
2. Section 301.75-6 is amended as follows:
0
a. In paragraph (a), by removing the words ``calamondin and''.
0
b. In the introductory text of paragraph (b), by removing the words
``Calamondin (Citrus mitus) and kumquat'' and adding the word
``Kumquat'' in their place.
0
c. In paragraph (b)(3), by removing the words ``calamondin and''.
0
d. In paragraph (b)(6), by removing the words ``calamondin and''.
0
e. In paragraph (b)(8), by removing the words ``calamondin or''.
Sec. 301.75-12 [Amended]
0
3. In Sec. 301.75-12, the introductory text of paragraph (b)(1) is
amended by removing the words ``calamondin and''.
Done in Washington, DC, this 6th day of April 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-8103 Filed 4-8-09; 8:45 am]
BILLING CODE 3410-34-P
