61210 Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations

Done at Washington, DC., this 3rd day of

November 1997.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 97–29606 Filed 11–14–97; 8:45 am]

BILLING CODE 3410–23–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 96–061–2]

RIN 0579–AA85

Interstate Movement of Imported

Plants and Plant Parts

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are establishing a new

generic domestic quarantine notice.

This domestic quarantine notice

provides that, subsequent to their

importation, foreign plants and plant

parts prohibited under our foreign

quarantine notices from being imported

into certain States or areas are also

prohibited from being moved interstate

into those States or areas. This action

will clarify and strengthen our ability to

enforce restrictions on the movement in

commerce of imported plants and plant

parts that present a risk of introducing

foreign plant pests and diseases. In

conjunction with this action, we are also

removing a domestic quarantine notice

that prohibits certain interstate

movements of Unshu oranges,

subsequent to their importation into the

United States, because the new

domestic quarantine notice makes a

specific one for Unshu oranges

unnecessary.

EFFECTIVE DATE: December 17, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Stephen Poe, Operations Officer,

Domestic and Emergency Operations,

PPQ, APHIS, 4700 River Road Unit 134,

Riverdale, MD 20737–1236, (301) 734–

8899.

SUPPLEMENTARY INFORMATION:

Background

The regulations at title 7, part 301, of

the Code of Federal Regulations (CFR)

contain domestic quarantine notices

designed to prevent the spread of

certain plant pests and diseases through

the interstate movement of regulated

articles. The regulations at 7 CFR 319

contain foreign quarantine notices

designed to prevent the introduction of

foreign plant pests and diseases through

the importation of regulated articles into

the United States.

Some of the foreign quarantine

notices in part 319 include destination

restrictions for specified imported

plants and plant parts. That is, these

notices allow specified foreign plants or

plant parts to be imported into some

parts of the United States but not into

other specified States or areas because

movement into those States or areas

could present a plant pest or disease

risk. However, only one domestic

quarantine notice (7 CFR 301.83,

‘‘Subpart-Unshu Oranges’’) prohibits the

subsequent movement of an imported

plant or plant part into or through

certain portions of the United States

based on importation restrictions

specified in a foreign quarantine notice

(7 CFR 319.28, ‘‘Subpart-Citrus Fruit’’).

On October 2, 1996, we published in

the Federal Register (61 FR 51376–

51377, Docket No. 96–061–1) a proposal

to amend the regulations in title 7 by

establishing a new generic domestic

quarantine notice in part 301. We stated

that the proposed quarantine notice

would prohibit the subsequent interstate

movement of imported plants and plant

parts into or through areas identified in

a foreign quarantine notice as being a

prohibited destination for the imported

plants and plant parts.

In conjunction with the action just

described, we also proposed to remove

the domestic quarantine notice,

‘‘Subpart-Unshu Oranges,’’ contained in

§ 301.83. As mentioned previously, that

subpart serves to reinforce the

destination restrictions for imported

Unshu oranges specified in the foreign

quarantine notice ‘‘Subpart-Citrus

Fruit.’’ The establishment of the generic

domestic quarantine notice described

above would make the prohibitions in

‘‘Subpart-Unshu Oranges’’ redundant

and, therefore, no longer necessary.

We solicited comments concerning

our proposal for 45 days ending

November 18, 1996. We received four

comments by that date. They were from

an industry group, a scientific

organization, and two State

governments.

While we will discuss specific

comments below, we believe several of

the concerns expressed in the comments

stemmed from confusion about the

language we used in the proposed

domestic quarantine notice. We regret

any misunderstanding that resulted

from the proposal as written and will

attempt to explain more clearly in this

document our goal in promulgating this

regulation. We also are revising the

proposed regulatory language to clarify

it.

To begin, we would like to emphasize

that this generic domestic quarantine

notice adds no new quarantine

restrictions; it simply reiterates in the

domestic quarantine notices (title 7, part

301) restrictions that are already stated

in the foreign quarantine notices (title 7,

part 319). Therefore, this notice will

have no effect on the legal importation

or interstate transport of foreign plants

or plant parts. What this domestic

quarantine notice will do is clarify that

shipping an imported plant or plant part

interstate to an area of the United States

that is a prohibited destination for that

plant or plant part under a foreign

quarantine notice is a violation of

Federal regulations. Because this notice

clearly states that such interstate

movement of certain imported plants

and plant parts is prohibited, we believe

that this notice strengthens our ability to

take regulatory action against persons

who engage in such prohibited

interstate transport.

This new quarantine notice logically

places any regulations setting forth

restrictions on the interstate movement

of imported plants and plant parts in the

domestic quarantine notices in part 301

of the regulations instead of in the

foreign quarantine notices in part 319.

Any member of the public who might

check the CFR to determine whether the

domestic movement of an imported

plant or plant part is prohibited or

restricted could not reasonably be

expected to look for that information in

the foreign quarantine notices. Placing

this quarantine notice and prohibition

on interstate movement in a more

logical position in the CFR will increase

public awareness of and accessibility to

these restrictions in the regulations.

Specific Concerns

One commenter expressed concern

that the language in the proposed

domestic quarantine notice was ‘‘vague

and confusing and could easily result in

misinterpretation as to its intent,

especially where it states that the

limited distribution areas are essentially

quarantined areas.’’

As our proposal was worded, areas of

the United States into which a plant or

plant part may be imported under part

319 would be quarantined with respect

to that plant or plant part; all other areas

of the United States would not be

quarantined with respect to that plant or

plant part, and movement of the plant

or plant part would be prohibited into

nonquarantined areas.

We recognize that designating as

‘‘quarantined areas’’ the States and areas

into which the foreign plants or plant

parts may move could be confusing to

some people. Under many plant pest
Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations 61211

quarantines, certain articles may not be

moved from a quarantined area because

there is an infestation in that area. The

States and areas quarantined for a

particular plant or plant part under the

generic domestic quarantine notice will

be ‘‘quarantined’’ because of the way in

which our authorizing statute is written.

According to 7 U.S.C. 161, the Secretary

of Agriculture is authorized and

directed to quarantine any portion of the

United States he deems necessary to

prevent the spread of a dangerous plant

disease or insect infestation that is new

to or not widely prevalent within the

United States. Further, 7 U.S.C. 161

prohibits the interstate movement of any

plants, plant parts, or other articles

capable of carrying the disease or insect

pest from any quarantined portion of the

United States into or through any other

part of the United States, except as

prescribed by the Secretary of

Agriculture.

We would like to illustrate how this

authority is used in regard to the foreign

quarantine notices in part 319. The

purpose of the destination restrictions

in the foreign quarantine notices that

have such restrictions is to prevent the

movement of an imported article that

presents a risk of carrying a foreign

plant pest or disease into an area of the

United States where the pest or disease

could become established. In the case of

imported Unshu oranges, for example,

all areas of the United States except for

American Samoa, Arizona, California,

Florida, Louisiana, the Northern

Mariana Islands, Puerto Rico, Texas,

and the Virgin Islands of the United

States are quarantined. The listed States

and territories are the primary citrusproducing areas of the United States.

Because we want to prevent the

possibility that imported Unshu oranges

could introduce citrus canker (a disease

of citrus) into the United States, we

prohibit these oranges from being

moved into U.S. citrus-production areas,

where the disease could become

established. Therefore, according to 7

CFR 301.83 and 319.28, imported

Unshu oranges grown in Japan or on

Cheju Island, Republic of Korea, may be

moved only into quarantined areas of

the United States (all areas of the United

States except for American Samoa,

Arizona, California, Florida, Louisiana,

the Northern Mariana Islands, Puerto

Rico, Texas, and the Virgin Islands of

the United States).

Because of the way in which our

statutory authority is written, the

generic domestic quarantine notice will

work in the same way as the Unshu

orange quarantine: The areas into which

a foreign plant or plant part may be

moved are quarantined with respect to

that plant or plant part, and any

subsequent movement of the imported

plant or plant part into nonquarantined

areas is prohibited. However, as a result

of the confusion generated by the

language in the proposal, we are adding

some introductory text to the quarantine

notice in an attempt to make the rule

more clear.

Some of the commenters expressed

concern regarding the development of

the destination restrictions on imported

plants and plant parts contained in the

foreign quarantine notices. One

commenter questioned how the

‘‘protected’’ States and areas would be

selected. Another commenter wanted us

to make provision for several actions:

Allowing exemptions to the restrictions

for research purposes, consulting the

scientific community during the

selection process, conducting risk

assessments of the imported plants and

plant parts and associated plant pests,

conducting periodic reviews of such

plants and pests, and conducting

reviews of taxonomic classifications.

We want to make clear that the

process we follow to add a foreign plant

or plant part to part 319 to allow the

plant’s or plant part’s importation with

or without destination restrictions will

not change as a result of this rule.

Moreover, we will not add to part 301

lists of plants or plant parts with

domestic movement restrictions as a

result of this rule. As stated previously,

this proposed quarantine notice adds no

new regulatory requirements; it simply

restates in part 301 restrictions on

interstate movement of plants and plant

parts that have always been prohibited

through the destination restrictions in

part 319.

Before we add a foreign plant or plant

part to part 319 to allow the plant’s or

plant part’s importation, we publish in

the Federal Register for public comment

a proposal explaining our reasons for

believing the plant or plant part could

be imported under certain conditions

without presenting a threat to the health

of U.S. agriculture. All comments

submitted are then carefully considered

before we issue a final rule. If, after

evaluating the comments received and

all available scientific data, we believe

the foreign plant or plant part presents

a plant pest or disease risk to certain

areas of the United States only, we may

choose to add the plant or plant part to

part 319 with destination restrictions

and other risk-mitigation measures.

(Destination restrictions are always only

one part of a systems approach to pest

and disease exclusion.) As part of this

rulemaking process, we conduct

periodic reviews and risk assessments of

foreign plants and plant pests, track

changes in taxonomy, and issue permits

for movement of plants and plant parts

for research purposes.

A couple of commenters raised

concerns about enforcement of the

proposed generic quarantine notice. The

commenters were concerned that no

additional enforcement mechanisms

were provided in the notice and that

enforcement would become the

responsibility of the States.

It is true that no new enforcement

mechanisms are included in the notice.

They were not necessary, and no new

enforcement responsibilities will

devolve upon the States as a result of

this action. Our goal in promulgating

this action was simply to clarify our

authority to take enforcement action,

should the need arise, against persons

who have moved imported plants or

plant parts interstate in violation of

destination restrictions in a foreign

quarantine notice.

One commenter opposed the general

concept of using limited distribution of

an article as a means of mitigating pest

or disease risk because enforcing

restrictions on the distribution of

commodities is difficult. We realize that

some prohibited shipments, most often

small shipments made by private

citizens, may take place as the result of

either ignorance of the regulations or

purposeful deceit. However, limited

distribution of a foreign plant or plant

part is never the sole measure used to

mitigate the pest or disease risks

associated with importing the plant or

plant part; destination restrictions are

one of usually a series of risk-mitigation

measures, or multiple safeguards, used

to reduce a commodity’s pest or disease

risk to a negligible level. Moreover, we

believe that the vast majority of

commercial shippers try to abide by

Federal requirements and that

unscrupulous distributors are the

exception rather than the norm.

One commenter requested that the

proposed quarantine notice include a

requirement that the shipping

containers for plants and plant parts

covered by the quarantine be labeled to

indicate that reshipment to the

restricted areas is prohibited. While the

proposal includes no additional labeling

requirements, the majority of foreign

quarantine notices that have destination

restrictions require that the containers

carrying the product be labeled ‘‘not for

distribution in’’ the restricted areas.

One commenter expressed concern

that the proposed generic quarantine

notice could infringe on a State’s

authority to restrict the entry from other

States of plants and plant parts that

present a plant pest risk to that State.
61212 Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations

This quarantine notice will have no

effect on a State’s authority to regulate

the interstate movement of domestic

plants or plant parts. The Plant

Quarantine Act (7 U.S.C. 151 et seq.)

allows a State to regulate the interstate

movement of plants and plant parts

coming into that State from a State

where a plant pest or disease exists until

the Secretary of Agriculture promulgates

a quarantine or regulation regarding the

plant pest or disease. Once the Secretary

acts by promulgating a quarantine or

regulation regarding a plant pest or

disease, the States are precluded, or

preempted, from regulating for that

particular plant pest or disease, except

that they may have regulations that

parallel the Federal quarantine or

regulations. However, the new domestic

quarantine notice does not establish any

new quarantine or regulations affecting

the interstate movement of domestic

plants or plant parts.

With respect to imported plants and

plant parts, our new domestic

quarantine notice prohibits the

subsequent interstate movement of

imported plants or plant parts into

States or areas named in part 319 as

States or areas into which the plants or

plant parts may not be imported. If part

319 allows a foreign plant or plant part

to be imported into a State, that State

does not have authority to refuse the

plant or plant part entry, either directly

from the port of arrival, or from another

State. The Federal Government retains

jurisdiction over all plants and plant

parts while they are in foreign

commerce. If the Secretary of

Agriculture does not prohibit or restrict

the importation of a plant or plant part,

any such prohibition or restriction is

deemed to be unnecessary. When

foreign commerce ceases is a question of

fact that must be addressed in each

individual case. However, the

Department of Agriculture has taken the

position that fresh fruits and vegetables

imported into the United States for

immediate distribution and sale remain

in foreign commerce until they are sold

to the ultimate consumer. Other

questions regarding when foreign

commerce ceases must be addressed on

a case-by-case basis and will be resolved

based on the facts in each particular

case.

For these reasons, a State may not

legally prohibit the interstate movement

of a foreign plant or plant part into the

State if the plant or plant part is allowed

importation into the State under part

319, whether or not the plant or plant

part is considered to be in foreign

commerce or in interstate commerce. If

an imported plant or plant part is

deemed to be in interstate commerce

(which could happen with plants and

plant parts other than fresh fruits and

vegetables), a State may not enforce

regulations that are different from the

Department’s regulations. Any State that

believes it should or should not be

included as a restricted destination in

part 319 should present its case to the

Administrator of the Animal and Plant

Health Inspection Service (APHIS).

One commenter expressed concern

that a State wishing to be included as a

restricted destination in part 319 might

be required first to conduct surveys to

establish that the State is free of the pest

of concern and then establish an official

control program to prevent interstate

movement of the pest into the State. The

commenter was further concerned that

this process could require funding and

other resources that the State might not

have.

We have no plans to require that,

before a State may be considered for

inclusion as a restricted destination in

part 319, the State would need to

conduct surveys to prove that it is free

of a particular foreign pest or establish

an official control program to prevent

interstate movement of that pest into its

jurisdiction. Any decision to include a

State as a restricted destination in part

319 is based upon a risk assessment,

conducted by the Department, that

indicates that destination restrictions

appear warranted to reduce the pest risk

to susceptible crops within that State.

The establishment of an official control

program by a State would not be a

prerequisite to a State’s being listed as

a restricted destination in part 319.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final rule

with the changes discussed in this

document.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The rule has

been determined to be not significant for

the purposes of Executive Order 12866

and, therefore, has not been reviewed by

the Office of Management and Budget.

We do not anticipate that this action

will have a significant economic impact

on any small entities. Imported plants

and plant parts, including fruits and

vegetables, that are prohibited from

being imported into specified States or

areas under our foreign quarantine

notices are, under those same notices,

prohibited from being distributed in

those States or areas. This action

clarifies and strengthens the agency’s

ability to enforce these restrictions.

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.

Executive Order 12372

This program/activity is listed in the

Catalog of Federal Domestic Assistance

under No. 10.025 and is subject to

Executive Order 12372, which requires

intergovernmental consultation with

State and local officials. (See 7 CFR part

3015, subpart V.)

Executive Order 12988

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule: (1) Preempts all State

and local laws and regulations that are

inconsistent with this rule; (2) has no

retroactive effect; and (3) does not

require administrative proceedings

before parties may file suit in court

challenging this rule.

Paperwork Reduction Act

This rule contains no information

collection or recordkeeping

requirements under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et. seq.).

Regulatory Reform

This action is part of the President’s

Regulatory Reform Initiative, which,

among other things, directs agencies to

remove obsolete and unnecessary

regulations and to find less burdensome

ways to achieve regulatory goals.

List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant

diseases and pests, Quarantine,

Reporting and recordkeeping

requirements, Transportation.

Accordingly, 7 CFR part 301 is

amended as follows:

PART 301—DOMESTIC QUARANTINE

NOTICES

1. The authority citation for part 301

continues to read as follows:

Authority: 7 U.S.C. 147a, 150bb, 150dd,

150ee, 150ff, 161, 162, and 164–167; 7 CFR

2.22, 2.80, and 371.2(c).

2. A new subpart, Subpart-Imported

Plants and Plant Parts, is added to part

301 to read as follows:

Subpart—Imported Plants and Plant Parts

Sec.

301.10 Definitions.

301.11 Notice of quarantine; prohibition on

the interstate movement of certain

imported plants and plant parts.
Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations 61213

Subpart—Imported Plants and Plant

Parts

§ 301.10 Definitions.

Move (moved, movement). Shipped,

offered to a common carrier for

shipment, received for transportation or

transported by a common carrier, or

carried, transported, moved, or allowed

to be moved.

State. Any State, territory, district, or

possession of the United States.

§ 301.11 Notice of quarantine; prohibition

on the interstate movement of certain

imported plants and plant parts.

(a) In accordance with part 319 of this

chapter, some plants and plant parts

may only be imported into the United

States subject to certain destination

restrictions. That is, under part 319,

some plants and plant parts may be

imported into some States or areas of

the United States but are prohibited

from being imported into, entered into,

or distributed within other States or

areas, as an additional safeguard against

the introduction and establishment of

foreign plant pests and diseases.

(b) Under this quarantine notice,

whenever any imported plant or plant

part is subject to destination restrictions

under part 319:

(1) The State(s) or area(s) into which

the plant or plant part is allowed to be

imported is quarantined with respect to

that plant or plant part; and

(2) No person shall move any plant or

plant part from any such quarantined

State or area into or through any State

or area not quarantined with respect to

that plant or plant part.

Subpart—Unshu Oranges—[Removed

and Reserved]

3. Subpart-Unshu Oranges, consisting

of § 301.83, is removed and reserved.

Done in Washington, DC, this 10th day of

November 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–30107 Filed 11–14–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 97–113–1]

Mexican Fruit Fly Regulations;

Addition of Regulated Area

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the Mexican

fruit fly regulations by adding California

to the list of quarantined States and by

designating a portion of Los Angeles

County, CA, as a regulated area. This

action is necessary on an emergency

basis to prevent the spread of the

Mexican fruit fly to noninfested areas of

the United States. This action restricts

the interstate movement of regulated

articles from the regulated area in

California.

DATES: Interim rule effective November

10, 1997. Consideration will be given

only to comments received on or before

January 16, 1998.

ADDRESSES: Please send an original and

three copies of your comments to

Docket No. 97–113–1, Regulatory

Analysis and Development, PPD,

APHIS, suite 3C03, 4700 River Road

Unit 118, Riverdale, MD 20737–1238.

Please state that your comments refer to

Docket No. 97–113–1. Comments

received may be inspected at USDA,

room 1141, South Building, 14th Street

and Independence Avenue SW.,

Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday,

except holidays. Persons wishing to

inspect comments are requested to call

ahead on (202) 690–2817 to facilitate

entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr.

Michael B. Stefan, Operations Officer,

Domestic and Emergency Operations,

PPQ, APHIS, 4700 River Road Unit 134,

Riverdale, MD 20737–1236, (301) 734–

8247; or e-mail:

mstefan@aphis.usda.gov.

SUPPLEMENTARY INFORMATION:

Background

The Mexican fruit fly, Anastrepha

ludens (Loew), is a destructive pest of

citrus and many other types of fruit. The

short life cycle of the Mexican fruit fly

allows rapid development of serious

outbreaks that can cause severe

economic losses in commercial citrusproducing areas.

The Mexican fruit fly regulations

(contained in 7 CFR 301.64 through

301.64–10 and referred to below as the

regulations) were established to prevent

the spread of the Mexican fruit fly to

noninfested areas of the United States.

The regulations impose restrictions on

the interstate movement of regulated

articles from the regulated areas. Prior to

the effective date of this rule, Texas was

the only State quarantined for the

Mexican fruit fly.

Section 301.64–3 provides that the

Deputy Administrator of the Animal

and Plant Health Inspection Service

(APHIS) for Plant Protection and

Quarantine (PPQ) shall list as a

regulated area each quarantined State,

or each portion of a quarantined State,

in which the Mexican fruit fly has been

found by an inspector, in which the

Deputy Administrator has reason to

believe the Mexican fruit fly is present,

or that the Deputy Administrator

considers necessary to regulate because

of its proximity to the Mexican fruit fly

or its inseparability for quarantine

enforcement purposes from localities in

which the Mexican fruit fly occurs. Less

than an entire quarantined State is

designated as a regulated area only if the

Deputy Administrator determines that:

(1) The State has adopted and is

enforcing a quarantine or regulation that

imposes restrictions on the intrastate

movement of the regulated articles that

are substantially the same as those that

are imposed with respect to the

interstate movement of the articles; and

(2) The designation of less than the

entire State as a regulated area will

otherwise be adequate to prevent the

artificial interstate spread of the

Mexican fruit fly.

Recent trapping surveys by inspectors

of California State and county agencies

and by inspectors of PPQ reveal that

portions of Los Angeles County, CA, are

infested with the Mexican fruit fly.

Specifically, on October 10, 1997,

inspectors found one female Mexican

fruit fly in a trap in a residential area of

Los Angeles County; on October 20,

1997, inspectors found one male

Mexican fruit fly in the same area; and,

on October 22, 1997, inspectors detected

larvae in the same area as the adult

finds, indicating that an infestation

exists. The Mexican fruit fly is not

known to occur anywhere else in the

continental United States except parts of

Texas.

Accordingly, to prevent the spread of

the Mexican fruit fly to other States, we

are amending the regulations in

§ 301.64(a) by designating California as

a quarantined State and in § 301.64–3(c)

by designating as a regulated area a

portion of Los Angeles County, CA. The

regulated area is described in the rule

portion of this document.

There does not appear to be any

reason to designate any other portions of

the quarantined State of California as a

regulated area. Officials of State

agencies of California have begun an

intensive Mexican fruit fly eradication

program in the regulated area in

California. Also, California has adopted

and is enforcing regulations imposing

restrictions on the intrastate movement

of certain articles from the regulated

area that are substantially the same as