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[Federal Register Volume 78, Number 206 (Thursday, October 24, 2013)]
[Rules and Regulations]
[Pages 63369-63373]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-25019]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2010-0048]
RIN 0579-AD29

Citrus Canker, Citrus Greening, and Asian Citrus Psyllid; 
Interstate Movement of Regulated Nursery Stock

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, with nonsubstantive changes, 
an interim rule that amended the regulations governing the interstate 
movement of regulated articles from areas quarantined for citrus 
canker, citrus greening, and/or Asian citrus psyllid (ACP) to allow the 
movement of regulated nursery stock under a certificate to any area 
within the United States. In order to be eligible to move regulated 
nursery stock, a nursery had to enter into a compliance agreement with 
the Animal and Plant Health Inspection Service that specified the 
conditions under which the nursery stock must be grown, maintained, and 
shipped. The interim rule also amended the regulations that allow the 
movement of regulated nursery stock from an area quarantined for ACP, 
but not for citrus greening, to amend the existing regulatory 
requirements for the issuance of limited permits for the interstate 
movement of the nursery stock. The interim rule was necessary on an 
immediate basis in order to provide nursery stock producers in areas 
quarantined for citrus canker, citrus greening, and/or ACP with the 
ability to ship regulated nursery stock to markets within the United 
States that would otherwise be unavailable to them due to the 
prohibitions and restrictions contained in the regulations while 
continuing to provide adequate safeguards to prevent the spread of the 
three pests into currently unaffected areas of the United States.

DATES: Effective Date: November 25, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Lynn Evans-Goldner, National 
Policy Manager, Pest Management, Plant

[[Page 63370]]

Health Programs, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 
20737; (301) 851-2286.

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 pest 
within the United States. Under the PPA, the Secretary may also issue 
regulations requiring plants and plant products moved in interstate 
commerce to be subject to remedial measures determined necessary to 
prevent the spread of the pest, or requiring the plants or plant 
products to be accompanied by a permit issued by the Secretary prior to 
movement.
    Citrus canker is a plant disease that is caused by a complex of 
Xanthomonas spp. bacteria and 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 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 
301.75-17, referred to below as the citrus canker regulations). The 
citrus canker regulations designate the State of Florida as a 
quarantined area, and restrict the interstate movement of regulated 
articles from and through this area. 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, among other 
articles, fruit, seed, and nursery stock. The provisions of the citrus 
canker regulations that pertain to the interstate movement of regulated 
nursery stock from areas quarantined for citrus canker are found in 
Sec.  301.75-6.
    Citrus greening, also known as Huanglongbing disease of citrus, is 
considered to be one of the most serious citrus diseases in the world. 
Citrus greening is a bacterial disease, caused by strains of the 
bacterial pathogen ``Candidatus Liberibacter asiaticus,'' that attacks 
the vascular system of host plants. The pathogen is phloem-limited, 
inhabiting the food-conducting tissue of the host plant, and causes 
yellow shoots, blotchy mottling and chlorosis, reduced foliage, and tip 
dieback of citrus plants. Citrus greening greatly reduces production, 
destroys the economic value of the fruit, and can kill trees. Once 
infected, there is no cure for a tree with citrus greening. In areas of 
the world where the disease is endemic, citrus trees decline and die 
within a few years and may never produce usable fruit. Citrus greening 
was first detected in the United States in Miami-Dade County, FL, in 
2005, and is known to be present in the United States in Florida and 
Georgia, Puerto Rico, the U.S. Virgin Islands, two parishes in 
Louisiana, two counties in South Carolina, an area composed of portions 
of two counties in California, and portions of one county in Texas.
    The bacterial pathogen causing citrus greening can be transmitted 
by grafting, and under laboratory conditions, by parasitic plants. 
There also is some evidence that seed transmission may occur. The 
pathogen can also be transmitted by two insect vectors in the family 
Psyllidae: Diaphorina citri Kuwayama, the Asian citrus psyllid (ACP), 
and Trioza erytreae (del Guercio), the African citrus psyllid. ACP can 
also cause economic damage to citrus in groves and nurseries by direct 
feeding. Both adults and nymphs feed on young foliage, depleting the 
sap and causing galling or curling of leaves. High populations feeding 
on a citrus shoot can kill the growing tip. ACP is currently present in 
Alabama, American Samoa, Florida, Georgia, Guam, Hawaii, Louisiana, 
Mississippi, the Northern Mariana Islands, Puerto Rico, Texas, the U.S. 
Virgin Islands, and portions of Arizona, California, and South 
Carolina. Regular surveys of domestic commercial citrus-producing areas 
indicate that the African citrus psyllid is not present in the United 
States.
    The regulations to prevent the interstate spread of citrus greening 
and ACP are contained in ``Subpart-Citrus Greening and Asian Citrus 
Psyllid'' (7 CFR 301.76 through 301.76-11, referred to below as the 
citrus greening and ACP regulations). The citrus greening and ACP 
regulations quarantine the States of Florida and Georgia, Puerto Rico, 
the U.S. Virgin Islands, two parishes in Louisiana, two counties in 
South Carolina, an area composed of portions of two counties in 
California, and portions of one county in Texas due to the presence of 
citrus greening, and quarantine Alabama, American Samoa, Florida, 
Georgia, Guam, Hawaii, Louisiana, Mississippi, the Northern Mariana 
Islands, Puerto Rico, Texas, the U.S. Virgin Islands, and portions of 
Arizona, California, and South Carolina due to the presence of ACP. The 
regulations also place restrictions on the interstate movement of 
regulated articles from quarantined areas. Regulated articles include 
all plants and plant parts, except fruit, of host species within the 
family Rutaceae.
    Because of the severity of citrus canker and citrus greening, and 
because the movement of citrus nursery stock is a well-documented 
pathway for the spread of these two diseases, the citrus canker and 
citrus greening and ACP regulations had generally prohibited the 
interstate movement of regulated nursery stock from areas quarantined 
for these diseases, with certain, limited exceptions.
    On April 27, 2011, we published an interim rule \1\ in the Federal 
Register (76 FR 23449-23459, Docket No. APHIS-2010-0048) that amended 
the citrus canker and citrus greening regulations to allow for the 
movement of regulated nursery stock under a certificate to any area 
within the United States. In order to be eligible to move regulated 
nursery stock, in addition to the other requirements of the citrus 
canker and/or citrus greening and ACP regulations, a nursery must enter 
into a compliance agreement with the Animal and Plant Health Inspection 
Service (APHIS) of the United States Department of Agriculture (USDA) 
that specified the conditions under which the nursery stock must be 
grown, maintained, and shipped. The minimum conditions that would be 
part of such a compliance agreement were contained in a protocol 
document that accompanied the interim rule. The interim rule also 
amended the regulations that allow the movement of regulated nursery 
stock from an area quarantined for ACP, but not for citrus greening, to 
amend the existing regulatory requirements for the issuance of limited 
permits for the interstate movement of the nursery stock.
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    \1\ To view the interim rule, its supporting documents, and the 
comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0048.
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    We solicited comments concerning the interim rule for 60 days 
ending June 27, 2011. We received seven comments by that date, from 
nursery stock

[[Page 63371]]

producers and a State department of agriculture. All commenters 
supported the rule but suggested some changes to or clarifications 
regarding either its provisions or those of the protocol document. We 
discuss the comments that we received immediately below.

Comments on the Interim Rule

    The State department of agriculture pointed out that, in the 
preamble for the interim rule, we stated that the rule preempted all 
State and local laws that were inconsistent with the rule. The State 
department of agriculture stated that it was its understanding that the 
rule would not preempt existing State regulations that prohibited the 
movement of citrus nursery stock into its State.
    Section 436 of the PPA provides that, with very limited exemptions, 
regulations issued by USDA pursuant to the PPA to prevent the 
dissemination of plant pests within the United States preempt State and 
local laws and regulations. Thus, we are bound by our statutory 
authority to claim such preemption.
    However, it is worth noting that the preemption claimed by the 
interim rule extends only to laws and regulations that the State has 
issued to address the dissemination of citrus canker, citrus greening, 
and ACP. State laws or regulations that restrict or prohibit the 
movement of citrus nursery stock into the State in order to address 
other pests and diseases of citrus were not preempted by the interim 
rule.
    One commenter stated that, while he produced citrus nursery stock, 
his markets were not out-of-State, but rather airport kiosks and 
souvenir stores within his State. However, since the nursery stock was 
marketed at these locations to tourists and other out-of-State 
visitors, the commenter asked whether movement of nursery stock to the 
kiosks and souvenir stores constituted interstate movement. The 
commenter pointed out that State regulations regarding the intrastate 
movement of nursery stock to such destinations varied considerably from 
the provisions of the interim rule.
    Because this movement to kiosks and stores occurs entirely within a 
State, it is an intrastate movement. As such, it is not regulated by 
the interim rule.
    Several commenters stated that, while they produced nursery stock, 
their primary markets were not for nursery stock itself, but for leaves 
and other plant parts from nursery stock. The commenters asked whether 
the rule could be expanded in scope to cover both nursery stock and 
articles derived from nursery stock.
    In response to this request, we reexamined the provisions of the 
interim rule and accompanying protocol document and determined that the 
regulatory provisions that pertain to the production of nursery stock 
within a nursery would provide for the production of leaves and other 
plant parts that are free of citrus canker, citrus greening, and ACP. 
However, the requirements in the protocol document for safeguarding 
shipments of nursery stock, as well as the recordkeeping requirements, 
were specifically drafted for nursery stock. They were not intended for 
leaves and plant parts, which are often packaged in a different manner 
and moved in significantly different market channels than nursery 
stock, and cannot simply be extended to apply to these articles.
    Moreover, our analysis of the environmental effects of the interim 
rule under the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.) examined only the environmental impacts associated with the 
production and movement of nursery stock in accordance with the interim 
rule and protocol document. The conclusions reached by that analysis 
apply only to nursery stock, and further analysis would need to be 
conducted if we were to extend the scope of the regulations to 
articles, such as leaves, that are often sold for direct human 
consumption.
    Accordingly, we do not consider it possible to extend the scope of 
the interim rule to cover leaves and other plants parts in this final 
rule, and we are making no change to the regulations in response to 
this comment.
    We do, however, recognize that producers in areas quarantined for 
citrus canker, citrus greening, and/or ACP have suffered a significant 
loss of markets for citrus leaves as a result of those quarantines. To 
that end, APHIS has recently begun developing a systems approach 
protocol for citrus leaves that are intended for culinary purposes that 
would mitigate the risk that these leaves present of spreading citrus 
diseases or ACP.

Comments on the Protocol Document

    As we mentioned earlier in this document, the interim rule was 
accompanied by a protocol document. This protocol document contained 
standards and requirements that are included in compliance agreements 
issued pursuant to the interim rule, and that a nursery must therefore 
meet in order to move citrus nursery stock interstate without 
restriction from an area quarantined for citrus canker, citrus 
greening, and/or ACP. We received several comments regarding the 
protocol document.
    Section I of the protocol document contained general requirements. 
One of these stated that all budwood source material maintained at the 
nurseries had to meet the same facility standards as a State Certified 
Clean Stock Program.
    One commenter stated that this provision effectively incorporated 
State Certified Clean Stock Program facility standards by reference. 
The commenter further pointed out that the facility standards contained 
in State Certified Clean Stock Program regulations in the commenter's 
State differ significantly from the facility standards contained in the 
protocol document, and are, in general, far more restrictive and costly 
than those contained in the protocol document.
    We acknowledge that this provision was worded in a manner which 
could be construed as incorporating State Certified Clean Stock Program 
facility standards by reference. Our intent was to require nurseries to 
obtain budwood from a facility that meets State Certified Clean Stock 
Program standards; this ensures that the propagative material that 
enters the nursery and is used as a foundation block is free of citrus 
canker, citrus greening, and ACP. Nurseries are not required to 
maintain the budwood under these same facility standards, which we 
agree are often both significantly more restrictive and costly than 
those in the protocol document. We have amended the protocol document 
to clarify the intent of this provision.
    Section II of the protocol document contained additional 
requirements for interstate movement of regulated nursery stock from 
areas quarantined for citrus canker. One of these requirements was that 
vehicles, equipment, and other articles used to handle or move citrus 
nursery stock be treated for citrus canker upon leaving the grove or 
premises.
    One commenter suggested that this requirement be amended to require 
treatment upon entering and exiting the facility itself.
    The requirement was intended to work in tandem with another 
requirement in Section II that required personnel to disinfect their 
hands and arms and spray clothing and footwear with a product approved 
by APHIS to be effective against citrus canker prior to entering the 
nursery or compartment within the nursery in which nursery stock is 
grown for interstate movement. We intended the treatment of vehicles, 
equipment, and articles for citrus canker to take place at the same 
time and in the

[[Page 63372]]

same location as this disinfection of personnel and clothing.
    We never intended such treatment to take place upon leaving a grove 
or premises; this was an inadvertent editorial error, and we have not 
required treatment upon leaving a grove or premises since the interim 
rule was issued. We have amended the protocol document to reflect our 
original intent to require treatment upon entering the nursery.
    We do not consider it necessary to require treatment of vehicles, 
equipment, and articles upon exiting the nursery or compartment. If the 
other provisions of the protocol document are adhered to, there should 
be no bacterium within the nursery or compartment.
    In that same section of the protocol document, we required that all 
nursery stock for interstate movement from the facility must be 
visually inspected at 15-day intervals for symptoms of citrus canker.
    Several commenters stated that requiring inspections to be 
conducted at 30-day intervals would allow them to dovetail with State-
required inspections, lessening the burden on State regulatory 
personnel. The same commenters stated that, given the other 
requirements of the protocol, lengthening the duration between 
inspections to 30 days would be unlikely to increase the risk that 
nursery stock infected with citrus canker would be moved interstate 
under the provisions of the protocol.
    We agree and have amended the protocol document accordingly.
    Section IV of the protocol document contained additional 
requirements for interstate movement of nursery stock from areas 
quarantined for citrus greening. One of these requirements was that all 
nursery stock moved interstate from the nursery be treated with an 
APHIS-approved foliar spray no more than 10 days prior to shipment.
    One commenter construed this requirement as requiring the entire 
nursery to be treated with an APHIS-approved foliar spray no more than 
10 days prior to the shipment of any nursery stock from the nursery. 
Given the frequency of shipments that the commenter anticipated 
following issuance of the interim rule, the commenter stated that the 
aggregate number of pesticide applications would likely greatly exceed 
the maximum number allowed yearly at one premises by the U.S. 
Environmental Protection Agency.
    This provision applies only to that nursery stock that is destined 
for shipment, not all nursery stock at the nursery.
    Section V of the protocol document provided conditions for the 
issuance of limited permits for the interstate movement of regulated 
nursery stock from areas that are quarantined for ACP, but not for 
citrus greening.
    One commenter stated that the protocol document should be amended 
to specify that these limited permits must be attached to the nursery 
stock.
    Such a provision already exists in Sec.  301.76-10 of the citrus 
greening and ACP regulations. Therefore, we do not consider it 
necessary to amend the protocol document in that manner.
    A revised version of the protocol document that incorporates the 
changes discussed above is available on the Internet at http://www.aphis.usda.gov/plant_health/plant_pest_info/citrus/index.shtml 
and on Regulations.gov (see footnote 1 above), and may also be obtained 
by contacting the person listed earlier in this document beneath the 
heading FOR FURTHER INFORMATION CONTACT.

Miscellaneous

    We are making two nonsubstantive changes to Sec.  301.76-6 of the 
ACP and greening regulations in this final rule. Paragraph (c) of that 
section provides for the issuance of limited permits for the interstate 
movement of regulated nursery stock from areas quarantined only for 
ACP, subject to certain conditions. One of these conditions, found in 
paragraphs (c)(1) and (c)(2) of that section, prohibits the movement of 
such nursery stock to commercial citrus-producing areas of the United 
States that are not quarantined due to the presence of ACP or citrus 
greening.
    The paragraphs had listed the Northern Mariana Islands as such an 
area. However, established populations of ACP have been detected in the 
Northern Mariana Islands, and we have, accordingly, quarantined the 
Northern Mariana Islands for ACP. Therefore, we are amending paragraphs 
(c)(1) and (c)(2) of Sec.  301.76-6 to remove the Northern Mariana 
Islands from the list of commercial citrus-producing areas that are not 
quarantined due to the presence of ACP or citrus greening.
    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 regarding Executive Orders 12372 and 12988 and the 
Paperwork Reduction Act.

Executive Order 12866 and the Regulatory Flexibility Act

    This final 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.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov Web site (see footnote 1 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Citrus canker, citrus greening, and ACP are among some of the most 
damaging citrus pests and diseases that have plagued the U.S. citrus 
industry. If their spread were not restricted, they would threaten the 
long-term profitability and vitality of the industry. The movement of 
infected citrus nursery stock is a primary means by which these citrus 
pests and diseases are newly introduced into citrus-producing areas.
    In recent years, State and Federal regulatory measures have been 
implemented to mitigate the spread of these citrus pests to commercial 
citrus-producing areas where they are not known to exist. Prior to our 
April 2011 interim rule, the citrus canker and citrus greening 
regulations generally prohibited the interstate movement of regulated 
nursery stock from areas quarantined for those diseases, with certain 
limited exceptions. Restrictions were also placed on the interstate 
movement of nursery stock from areas quarantined for ACP because it is 
a vector of the bacterial pathogen that causes citrus greening.
    The interim rule provided citrus nurseries in quarantined areas 
with access to previously unavailable markets throughout the United 
States. The majority of the citrus nurseries in quarantined areas were 
small entities. They benefitted from the rule by acquiring access to 
nationwide markets, although compliance costs may have reduced their 
competitiveness in comparison to suppliers of citrus nursery stock from 
non-quarantined areas.
    This rule finalizes that interim rule with several nonsubstantive 
changes. These changes have the effect of removing a prohibition on the 
movement of regulated articles from areas quarantined only for ACP to 
the Northern Mariana Islands, which we have also quarantined for ACP.

[[Page 63373]]

Operationally, this prohibition was removed when we imposed a 
quarantine for ACP on the Northern Mariana Islands, and we are not 
aware of any movement of regulated articles from such quarantined areas 
to the Northern Mariana Islands since then.
    Because the Northern Mariana Islands are geographically isolated 
from most of the United States, the producers most likely to benefit 
from market access to the Northern Mariana Islands are producers in 
Guam, the closest U.S. commercial citrus-producing area that is 
quarantined only for ACP.

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 76 FR 23449-23459 on April 27, 2011, is adopted as a final 
rule, with the following changes:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 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).

Sec.  301.76-6  [Amended]

0
2. In Sec.  301.76-6, paragraph (c)(1) is amended by removing the words 
``Northern Mariana Islands and'' and paragraph (c)(2) is amended by 
removing the words ``Northern Mariana Islands or''.

    Done in Washington, DC, this 18th day of October 2013.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-25019 Filed 10-23-13; 8:45 am]
BILLING CODE 3410-34-P
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