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[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Notices]
[Pages 59211-59213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23386]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

[Docket No. APHIS-2013-0086]

Implementation of a Program for Federal Recognition of State 
Managed Phytosanitary Programs

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice.

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SUMMARY: We are advising the public that we are implementing the 
Federally Recognized State Managed Phytosanitary program, which 
establishes a process for States to petition the Animal and Plant 
Health Inspection Service (APHIS) for Federal recognition of State-
managed phytosanitary programs developed to eradicate, exclude, or 
contain plant pests of limited distribution within the United States 
that APHIS is not currently regulating or is considering no longer 
regulating under a Federal program. APHIS will evaluate and consider 
recognizing a State phytosanitary program to control certain pests to 
determine whether we should continue to take a control action or begin 
to take a control action against such pests at our United States ports 
of entry to mitigate the risks posed by those pests when found in 
consignments of imported goods. This program will make our Federal 
control actions taken at the ports of entry concerning the 
dissemination and/or further infestation of certain plant pests more 
consistent with our control actions regarding the interstate movement 
of these same pests.

FOR FURTHER INFORMATION CONTACT: Mr. David B. Lamb, Regulatory Policy 
Specialist, RPM, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 
20737-1231; (301) 851-2018; or Ms. Diane L. Schuble, National 
Coordinator for Official Control, Pest Detection and Emergency 
Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-
1237; (301) 851-2334.

SUPPLEMENTARY INFORMATION: Under the Plant Protection Act, as amended 
(PPA, 7 U.S.C. 7701 et seq.), the Secretary of Agriculture is 
authorized to prohibit or restrict the importation, entry, or 
interstate movement of plants, plant products, or other articles if the 
Secretary determines that the prohibition or restriction is necessary 
to prevent a plant pest from being introduced into or disseminated 
within the United States. This authority has been delegated to the 
Administrator of the Animal and Plant Health Inspection Service 
(APHIS).
    As part of this mission, APHIS' Plant Protection and Quarantine 
(PPQ) program responds to foreign introductions of plant pests by 
taking action at the ports of entry to eradicate, suppress, or contain 
them through various control programs to prevent their introduction or 
dissemination into the United States. Under Section 436 of the PPA, 
States are prohibited from regulating in foreign commerce any plant 
pests, plants, plant products, or other articles in order to control, 
eradicate, or prevent the introduction or dissemination of a plant pest 
or a noxious weed into the United States. Thus, States are preempted 
from taking action against any imported shipment entering and moving 
within the United States in foreign commerce on the basis that the 
shipment is infested with or by a plant pest or noxious weed. However, 
individual States may establish phytosanitary regulations and 
procedures to address pests of concern to them when those pests are 
moving in interstate commerce as long as the State's phytosanitary 
regulations are consistent with and do not exceed any PPA regulations 
issued by APHIS.
    We recently advised the public that we have been and are continuing 
to assess certain plant pests that are present in the United States to 
determine whether we should continue to take action to mitigate the 
risk posed by those pests when they are found in consignments of 
imported goods at ports of entry into the United States. We discussed 
this action in a notice published in the Federal Register on November 
13, 2013 (78 FR 68020-68021, Docket No. APHIS-2013-0048).
    To ensure that we are taking pest control action at the ports of 
entry only when such action is warranted, we are implementing a 
program, known as the Federally Recognized State Managed Phytosanitary 
(FRSMP) program, that establishes a process by which States may 
petition APHIS to recognize State managed phytosanitary programs 
developed to eradicate, exclude, or contain a plant pest that is of 
specific concern to that State and is of limited distribution within 
the United States. APHIS will consider petitions for State-managed 
phytosanitary programs that seek to exclude a pest from a State where 
it is not present, and where economic or environmental harm could 
result from its introduction. APHIS will also consider petitions for 
State-managed phytosanitary programs that seek to contain or eradicate 
plant pests that are of specific concern to that State and are of 
limited distribution in the

[[Page 59212]]

United States and are also not currently regulated by APHIS. After 
review of the phytosanitary program information provided by the 
requesting State, APHIS will decide whether to continue taking any 
control action at ports of entry to mitigate the risk associated with 
the specific plant pest if found in shipments in foreign commerce. 
Federal recognition of a State's phytosanitary program is consistent 
with APHIS' PPA authorities and APHIS' compliance with International 
Plant Protection Convention guidelines.\1\
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    \1\ International Standard for Phytosanitary Measures No. 5, 
Supplement No.1, ``Guidelines on the interpretation and application 
of the concepts of ``official control'' and ``not widely 
distributed.''
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    APHIS will begin accepting and considering petitions from States 
interested in obtaining Federal recognition in the FRSMP program. In 
order to help States decide whether to petition for such recognition in 
the FRSMP program, a State can request APHIS to provide a report to the 
State listing pest interceptions in imported cargo for shipments 
destined to that State and can also request from APHIS port of entry 
information on specific pest interceptions for the prior 5 years. To be 
eligible for FRSMP recognition, a State will be required to demonstrate 
in their petitions that they meet the following criteria \2\ 
established by the FRSMP program:
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    \2\ The criteria are included in the FRSMP manual available at: 
http://www.aphis.usda.gov/importexport/plants/manuals/
ports/downloads/frsmp.pdf.
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     A State must provide detailed information about the 
absence or limited distribution of a pest in the State, pest pathways 
and likelihood of introduction into the State, potential economic and 
environmental harm that the pest may cause in the State, and the 
State's regulatory program for the pest that includes monitoring, 
surveillance, and control methods.
     A State must provide evidence that it has the authority to 
control the pest and to restrict activities and articles that 
facilitate the movement of the pest in the State that is not under 
Federal quarantine. This can be demonstrated by indicating that the 
State either has a regulatory quarantine in place to maintain pest 
freedom or limit pest distribution in the State or has the commitment 
and capability to enact, implement, and enforce a State regulatory 
quarantine within a reasonable time.
     A State must also present evidence to APHIS that its 
control program is technically sound with regard to pest containment 
and ability to measure results. For instance, a State must show that 
its mitigation measures are the least restrictive necessary to assure 
adequate protection and that a quality assurance process exists to 
measure the effectiveness of such mitigation measures. A State must 
also provide APHIS with an annual report showing evidence that the 
phytosanitary management of its program is effective and reliable.
     Finally, a State must be able to define and describe its 
control program and provide supporting documentation including 
compliance agreements, auditing reports, and maps defining the 
regulated areas within the State.
    Upon receipt of a petition from a State requesting Federal 
recognition of its phytosanitary program, that is, requesting to be 
approved to participate in the FRSMP, APHIS will review the petition, 
evaluate it using the criteria cited above, and notify the requesting 
State of our decision. Petitions that fail to fulfill the FRSMP program 
criteria will be returned to the submitting State and the State will 
have the option to revise and resubmit its petition.
    If we decide to recognize a State program as being part of the 
FRSMP, APHIS may continue to or begin to take Federal control actions 
at the United States ports of entry if this pest is intercepted in 
consignments of imported goods. Presently, when a plant pest of concern 
is found in a shipment of an imported commodity at a port of entry, 
APHIS requires mitigation or remedial actions to be taken, such as 
phytosanitary treatment, re-exportation, or destruction of the infested 
commodity. Once the FRSMP program begins and if APHIS determines to 
take Federal action on specific State petitioned FRSMP program plant 
pests, APHIS will likewise require such remedial measures on a 
commodity shipment infested with a FRSMP program pest that APHIS has 
decided to take control action on. Additionally, APHIS may decide to 
allow an additional remedial option for a shipment involving a FRSMP 
program plant pest if that shipment can be adequately mitigated or 
safeguarded to enter into the United States without any phytosanitary 
mitigation treatment when APHIS determines that the shipment is 
destined to, or can be re-directed to, a State that does not restrict 
that pest under the FRSMP program. In such a case, where an infested 
shipment infested with a FRSMP plant pest is allowed entry without 
phytosanitary treatment, APHIS may decide to issue an Emergency Action 
Notification ordering restrictions on the movement and destinations of 
that infested commodity shipment.
    APHIS, in its discretion, may decide to implement provisional FRSMP 
program status for a phytosanitary pest upon receipt and preliminary 
review of a State's FRSMP petition. If APHIS decides to implement 
provisional FRSMP program status for a phytosanitary pest, APHIS may 
require remedial action on that pest when it is detected arriving in or 
destined for the petitioning State(s) during the period that APHIS is 
finalizing review of that State's FRSMP petition. However, Federal 
collaborator status will not be conferred on a petitioning State agency 
until the petition is formally approved, which means no Federal 
authority will be delegated to a State to act upon the FRSMP program 
pest while that phytosanitary pest is in provisional status.
    The provisional FRSMP program status for a phytosanitary pest will 
not exceed 60 days from the implementation of that provisional status 
unless APHIS determines it should be extended and the requesting State 
wants such status extended. Likewise, APHIS may determine at any time 
that the provisional status be extended or withdrawn as necessary. For 
example, APHIS may extend a provisional status when a State is 
requested to submit additional information regarding their specific 
FRSMP petition. Provisional status may be withdrawn if the petition is 
denied, when a State notifies APHIS of its intent to withdraw from the 
petition process, when a State fails to complete the petition within 
the agreed upon time schedule, or a State no longer wants APHIS to take 
any control action against a specific phytosanitary pest.
    As explained above, the States are preempted under the PPA from 
taking any phytosanitary plant pest control actions on shipments moving 
in foreign commerce. Nevertheless, in order to make the FRSMP program 
operative and workable, APHIS has decided that it will enter into 
Federal cooperative arrangements with States that have recognized FRSMP 
program plant pests, in accordance with 7 U.S.C. 450. Under these 
envisioned cooperative arrangements, the Secretary of the U.S. 
Department of Agriculture will authorize States that have been accepted 
into the FRSMP to operate as Federal collaborators to administer and 
enforce Federal actions on commodity shipments infested with a FRSMP 
pest that is entering the United States and moving in foreign commerce 
\3\ and as

[[Page 59213]]

the result of such foreign commerce movement is found to be in that 
FRSMP State. States are obviously prohibited by the PPA from acting in 
such a Federal regulatory capacity unless such a cooperative 
arrangement is in place conferring Federal authority upon them to do so 
by the Secretary of Agriculture. Under these envisioned cooperative 
arrangements, States may be authorized to administer and enforce 
control actions to prevent the entry or movement of a specified FRSMP 
plant pest into or through their State only as Federal collaborators 
acting under the Federal authority conferred by the cooperative 
arrangement. APHIS does not confer any authority under the Plant 
Protection Act not specifically outlined in the cooperative arrangement 
and is not conferring authority under any other statute administered by 
APHIS, including the authority to establish and collect fees.
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    \3\ Articles imported into the United States under the authority 
of the PPA would remain in foreign commerce until sold to the 
ultimate consumer. The question of when foreign commerce ceases in 
other cases must be addressed on a case-by-case basis.
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    APHIS will monitor those States that have been authorized to act as 
Federal collaborators to ensure they are complying with the terms of 
the collaborative arrangement and the FRSMP program criteria. Failure 
of a State to meet the FRSMP program criteria will result in APHIS 
reconsidering the FRSMP program eligibility of that State program and 
the approval of any cooperative arrangement.
    In cases where a State is no longer interested in taking action 
against a FRSMP pest and APHIS can no longer justify continued action 
against such a FRSMP pest, APHIS will discontinue taking Federal 
control actions, if APHIS has any such actions in place, when such 
FRSMP pests are intercepted at the United States ports of entry.
    Additional information about the FRSMP program is available on the 
APHIS Web site at http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/
importexport?1dmy&urile=wcm%3apath%3a%2Faphiscontentli
brary%2Fsaourfocus%2Fsaplanthealth%2
Fsadomesticpestsanddiseases%2Fsa
frsmp.

    Done in Washington, DC, this 26th day of September 2014.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2014-23386 Filed 9-30-14; 8:45 am]
BILLING CODE 3410-34-P
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