[Federal Register Volume 74, Number 67 (Thursday, April 9, 2009)]
[Rules and Regulations]
[Pages 16097-16104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8103]



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Rules and Regulations
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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 
http://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 
http://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 
http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0032.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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 http://www.flrules.org/gateway/ChapterHome.asp?Chapter=5B-62.
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    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> The program requires the decontamination of all personnel 
and equipment before entering a nursery;
    <bullet> 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
    <bullet> 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 http://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:
    <bullet> The plants are own-root-only, and have not been grafted or 
budded.
    <bullet> The plants are started, are grown, and have been 
maintained solely at the nursery from which they will be moved 
interstate.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
---------------------------------------------------------------------------

    \14\ See footnote 13.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \15\ Source: USDA, NASS, July 2004. ``Nursery Crops 2003 
Summary.'' Washington, DC.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \16\ Source: Florida's Department of Agricultural and Consumer 
Services/Bureau of Plant and Apiary Inspection. Correspondence with 
APHIS, November 2007.
    \17\ Ibid.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \18\ To view the Federal Order, go to http://www/usda.gov/plant_health/plant_pest_info/citrusgreening/downloads/pdf_files/federalorder-01-11-2008.pdf.
---------------------------------------------------------------------------

    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