[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61210-61213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30107]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-061-2]
RIN 0579-AA85
Interstate Movement of Imported Plants and Plant Parts
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are establishing a new generic domestic quarantine notice.
This domestic quarantine notice provides that, subsequent to their
importation, foreign plants and plant parts prohibited under our
foreign quarantine notices from being imported into certain States or
areas are also prohibited from being moved interstate into those States
or areas. This action will clarify and strengthen our ability to
enforce restrictions on the movement in commerce of imported plants and
plant parts that present a risk of introducing foreign plant pests and
diseases. In conjunction with this action, we are also removing a
domestic quarantine notice that prohibits certain interstate movements
of Unshu oranges, subsequent to their importation into the United
States, because the new domestic quarantine notice makes a specific one
for Unshu oranges unnecessary.
EFFECTIVE DATE: December 17, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer,
Domestic and Emergency Operations, PPQ, APHIS, 4700 River Road Unit
134, Riverdale, MD 20737-1236, (301) 734-8899.
SUPPLEMENTARY INFORMATION:
Background
The regulations at title 7, part 301, of the Code of Federal
Regulations (CFR) contain domestic quarantine notices designed to
prevent the spread of certain plant pests and diseases through the
interstate movement of regulated articles. The regulations at 7 CFR 319
contain foreign quarantine notices designed to prevent the introduction
of foreign plant pests and diseases through the importation of
regulated articles into the United States.
Some of the foreign quarantine notices in part 319 include
destination restrictions for specified imported plants and plant parts.
That is, these notices allow specified foreign plants or plant parts to
be imported into some parts of the United States but not into other
specified States or areas because movement into those States or areas
could present a plant pest or disease risk. However, only one domestic
quarantine notice (7 CFR 301.83, ``Subpart-Unshu Oranges'') prohibits
the subsequent movement of an imported plant or plant part into or
through certain portions of the United States based on importation
restrictions specified in a foreign quarantine notice (7 CFR 319.28,
``Subpart-Citrus Fruit'').
On October 2, 1996, we published in the Federal Register (61 FR
51376-51377, Docket No. 96-061-1) a proposal to amend the regulations
in title 7 by establishing a new generic domestic quarantine notice in
part 301. We stated that the proposed quarantine notice would prohibit
the subsequent interstate movement of imported plants and plant parts
into or through areas identified in a foreign quarantine notice as
being a prohibited destination for the imported plants and plant parts.
In conjunction with the action just described, we also proposed to
remove the domestic quarantine notice, ``Subpart-Unshu Oranges,''
contained in Sec. 301.83. As mentioned previously, that subpart serves
to reinforce the destination restrictions for imported Unshu oranges
specified in the foreign quarantine notice ``Subpart-Citrus Fruit.''
The establishment of the generic domestic quarantine notice described
above would make the prohibitions in ``Subpart-Unshu Oranges''
redundant and, therefore, no longer necessary.
We solicited comments concerning our proposal for 45 days ending
November 18, 1996. We received four comments by that date. They were
from an industry group, a scientific organization, and two State
governments.
While we will discuss specific comments below, we believe several
of the concerns expressed in the comments stemmed from confusion about
the language we used in the proposed domestic quarantine notice. We
regret any misunderstanding that resulted from the proposal as written
and will attempt to explain more clearly in this document our goal in
promulgating this regulation. We also are revising the proposed
regulatory language to clarify it.
To begin, we would like to emphasize that this generic domestic
quarantine notice adds no new quarantine restrictions; it simply
reiterates in the domestic quarantine notices (title 7, part 301)
restrictions that are already stated in the foreign quarantine notices
(title 7, part 319). Therefore, this notice will have no effect on the
legal importation or interstate transport of foreign plants or plant
parts. What this domestic quarantine notice will do is clarify that
shipping an imported plant or plant part interstate to an area of the
United States that is a prohibited destination for that plant or plant
part under a foreign quarantine notice is a violation of Federal
regulations. Because this notice clearly states that such interstate
movement of certain imported plants and plant parts is prohibited, we
believe that this notice strengthens our ability to take regulatory
action against persons who engage in such prohibited interstate
transport.
This new quarantine notice logically places any regulations setting
forth restrictions on the interstate movement of imported plants and
plant parts in the domestic quarantine notices in part 301 of the
regulations instead of in the foreign quarantine notices in part 319.
Any member of the public who might check the CFR to determine whether
the domestic movement of an imported plant or plant part is prohibited
or restricted could not reasonably be expected to look for that
information in the foreign quarantine notices. Placing this quarantine
notice and prohibition on interstate movement in a more logical
position in the CFR will increase public awareness of and accessibility
to these restrictions in the regulations.
Specific Concerns
One commenter expressed concern that the language in the proposed
domestic quarantine notice was ``vague and confusing and could easily
result in misinterpretation as to its intent, especially where it
states that the limited distribution areas are essentially quarantined
areas.''
As our proposal was worded, areas of the United States into which a
plant or plant part may be imported under part 319 would be quarantined
with respect to that plant or plant part; all other areas of the United
States would not be quarantined with respect to that plant or plant
part, and movement of the plant or plant part would be prohibited into
nonquarantined areas.
We recognize that designating as ``quarantined areas'' the States
and areas into which the foreign plants or plant parts may move could
be confusing to some people. Under many plant pest
[[Page 61211]]
quarantines, certain articles may not be moved from a quarantined area
because there is an infestation in that area. The States and areas
quarantined for a particular plant or plant part under the generic
domestic quarantine notice will be ``quarantined'' because of the way
in which our authorizing statute is written. According to 7 U.S.C. 161,
the Secretary of Agriculture is authorized and directed to quarantine
any portion of the United States he deems necessary to prevent the
spread of a dangerous plant disease or insect infestation that is new
to or not widely prevalent within the United States. Further, 7 U.S.C.
161 prohibits the interstate movement of any plants, plant parts, or
other articles capable of carrying the disease or insect pest from any
quarantined portion of the United States into or through any other part
of the United States, except as prescribed by the Secretary of
Agriculture.
We would like to illustrate how this authority is used in regard to
the foreign quarantine notices in part 319. The purpose of the
destination restrictions in the foreign quarantine notices that have
such restrictions is to prevent the movement of an imported article
that presents a risk of carrying a foreign plant pest or disease into
an area of the United States where the pest or disease could become
established. In the case of imported Unshu oranges, for example, all
areas of the United States except for American Samoa, Arizona,
California, Florida, Louisiana, the Northern Mariana Islands, Puerto
Rico, Texas, and the Virgin Islands of the United States are
quarantined. The listed States and territories are the primary citrus-
producing areas of the United States. Because we want to prevent the
possibility that imported Unshu oranges could introduce citrus canker
(a disease of citrus) into the United States, we prohibit these oranges
from being moved into U.S. citrus-production areas, where the disease
could become established. Therefore, according to 7 CFR 301.83 and
319.28, imported Unshu oranges grown in Japan or on Cheju Island,
Republic of Korea, may be moved only into quarantined areas of the
United States (all areas of the United States except for American
Samoa, Arizona, California, Florida, Louisiana, the Northern Mariana
Islands, Puerto Rico, Texas, and the Virgin Islands of the United
States).
Because of the way in which our statutory authority is written, the
generic domestic quarantine notice will work in the same way as the
Unshu orange quarantine: The areas into which a foreign plant or plant
part may be moved are quarantined with respect to that plant or plant
part, and any subsequent movement of the imported plant or plant part
into nonquarantined areas is prohibited. However, as a result of the
confusion generated by the language in the proposal, we are adding some
introductory text to the quarantine notice in an attempt to make the
rule more clear.
Some of the commenters expressed concern regarding the development
of the destination restrictions on imported plants and plant parts
contained in the foreign quarantine notices. One commenter questioned
how the ``protected'' States and areas would be selected. Another
commenter wanted us to make provision for several actions: Allowing
exemptions to the restrictions for research purposes, consulting the
scientific community during the selection process, conducting risk
assessments of the imported plants and plant parts and associated plant
pests, conducting periodic reviews of such plants and pests, and
conducting reviews of taxonomic classifications.
We want to make clear that the process we follow to add a foreign
plant or plant part to part 319 to allow the plant's or plant part's
importation with or without destination restrictions will not change as
a result of this rule. Moreover, we will not add to part 301 lists of
plants or plant parts with domestic movement restrictions as a result
of this rule. As stated previously, this proposed quarantine notice
adds no new regulatory requirements; it simply restates in part 301
restrictions on interstate movement of plants and plant parts that have
always been prohibited through the destination restrictions in part
319.
Before we add a foreign plant or plant part to part 319 to allow
the plant's or plant part's importation, we publish in the Federal
Register for public comment a proposal explaining our reasons for
believing the plant or plant part could be imported under certain
conditions without presenting a threat to the health of U.S.
agriculture. All comments submitted are then carefully considered
before we issue a final rule. If, after evaluating the comments
received and all available scientific data, we believe the foreign
plant or plant part presents a plant pest or disease risk to certain
areas of the United States only, we may choose to add the plant or
plant part to part 319 with destination restrictions and other risk-
mitigation measures. (Destination restrictions are always only one part
of a systems approach to pest and disease exclusion.) As part of this
rulemaking process, we conduct periodic reviews and risk assessments of
foreign plants and plant pests, track changes in taxonomy, and issue
permits for movement of plants and plant parts for research purposes.
A couple of commenters raised concerns about enforcement of the
proposed generic quarantine notice. The commenters were concerned that
no additional enforcement mechanisms were provided in the notice and
that enforcement would become the responsibility of the States.
It is true that no new enforcement mechanisms are included in the
notice. They were not necessary, and no new enforcement
responsibilities will devolve upon the States as a result of this
action. Our goal in promulgating this action was simply to clarify our
authority to take enforcement action, should the need arise, against
persons who have moved imported plants or plant parts interstate in
violation of destination restrictions in a foreign quarantine notice.
One commenter opposed the general concept of using limited
distribution of an article as a means of mitigating pest or disease
risk because enforcing restrictions on the distribution of commodities
is difficult. We realize that some prohibited shipments, most often
small shipments made by private citizens, may take place as the result
of either ignorance of the regulations or purposeful deceit. However,
limited distribution of a foreign plant or plant part is never the sole
measure used to mitigate the pest or disease risks associated with
importing the plant or plant part; destination restrictions are one of
usually a series of risk-mitigation measures, or multiple safeguards,
used to reduce a commodity's pest or disease risk to a negligible
level. Moreover, we believe that the vast majority of commercial
shippers try to abide by Federal requirements and that unscrupulous
distributors are the exception rather than the norm.
One commenter requested that the proposed quarantine notice include
a requirement that the shipping containers for plants and plant parts
covered by the quarantine be labeled to indicate that reshipment to the
restricted areas is prohibited. While the proposal includes no
additional labeling requirements, the majority of foreign quarantine
notices that have destination restrictions require that the containers
carrying the product be labeled ``not for distribution in'' the
restricted areas.
One commenter expressed concern that the proposed generic
quarantine notice could infringe on a State's authority to restrict the
entry from other States of plants and plant parts that present a plant
pest risk to that State.
[[Page 61212]]
This quarantine notice will have no effect on a State's authority
to regulate the interstate movement of domestic plants or plant parts.
The Plant Quarantine Act (7 U.S.C. 151 et seq.) allows a State to
regulate the interstate movement of plants and plant parts coming into
that State from a State where a plant pest or disease exists until the
Secretary of Agriculture promulgates a quarantine or regulation
regarding the plant pest or disease. Once the Secretary acts by
promulgating a quarantine or regulation regarding a plant pest or
disease, the States are precluded, or preempted, from regulating for
that particular plant pest or disease, except that they may have
regulations that parallel the Federal quarantine or regulations.
However, the new domestic quarantine notice does not establish any new
quarantine or regulations affecting the interstate movement of domestic
plants or plant parts.
With respect to imported plants and plant parts, our new domestic
quarantine notice prohibits the subsequent interstate movement of
imported plants or plant parts into States or areas named in part 319
as States or areas into which the plants or plant parts may not be
imported. If part 319 allows a foreign plant or plant part to be
imported into a State, that State does not have authority to refuse the
plant or plant part entry, either directly from the port of arrival, or
from another State. The Federal Government retains jurisdiction over
all plants and plant parts while they are in foreign commerce. If the
Secretary of Agriculture does not prohibit or restrict the importation
of a plant or plant part, any such prohibition or restriction is deemed
to be unnecessary. When foreign commerce ceases is a question of fact
that must be addressed in each individual case. However, the Department
of Agriculture has taken the position that fresh fruits and vegetables
imported into the United States for immediate distribution and sale
remain in foreign commerce until they are sold to the ultimate
consumer. Other questions regarding when foreign commerce ceases must
be addressed on a case-by-case basis and will be resolved based on the
facts in each particular case.
For these reasons, a State may not legally prohibit the interstate
movement of a foreign plant or plant part into the State if the plant
or plant part is allowed importation into the State under part 319,
whether or not the plant or plant part is considered to be in foreign
commerce or in interstate commerce. If an imported plant or plant part
is deemed to be in interstate commerce (which could happen with plants
and plant parts other than fresh fruits and vegetables), a State may
not enforce regulations that are different from the Department's
regulations. Any State that believes it should or should not be
included as a restricted destination in part 319 should present its
case to the Administrator of the Animal and Plant Health Inspection
Service (APHIS).
One commenter expressed concern that a State wishing to be included
as a restricted destination in part 319 might be required first to
conduct surveys to establish that the State is free of the pest of
concern and then establish an official control program to prevent
interstate movement of the pest into the State. The commenter was
further concerned that this process could require funding and other
resources that the State might not have.
We have no plans to require that, before a State may be considered
for inclusion as a restricted destination in part 319, the State would
need to conduct surveys to prove that it is free of a particular
foreign pest or establish an official control program to prevent
interstate movement of that pest into its jurisdiction. Any decision to
include a State as a restricted destination in part 319 is based upon a
risk assessment, conducted by the Department, that indicates that
destination restrictions appear warranted to reduce the pest risk to
susceptible crops within that State. The establishment of an official
control program by a State would not be a prerequisite to a State's
being listed as a restricted destination in part 319.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule with the changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
We do not anticipate that this action will have a significant
economic impact on any small entities. Imported plants and plant parts,
including fruits and vegetables, that are prohibited from being
imported into specified States or areas under our foreign quarantine
notices are, under those same notices, prohibited from being
distributed in those States or areas. This action clarifies and
strengthens the agency's ability to enforce these restrictions.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et. seq.).
Regulatory Reform
This action is part of the President's Regulatory Reform
Initiative, which, among other things, directs agencies to remove
obsolete and unnecessary regulations and to find less burdensome ways
to achieve regulatory goals.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C. 147a, 150bb, 150dd, 150ee, 150ff, 161, 162,
and 164-167; 7 CFR 2.22, 2.80, and 371.2(c).
2. A new subpart, Subpart-Imported Plants and Plant Parts, is added
to part 301 to read as follows:
Subpart--Imported Plants and Plant Parts
Sec.
301.10 Definitions.
301.11 Notice of quarantine; prohibition on the interstate movement
of certain imported plants and plant parts.
[[Page 61213]]
Subpart--Imported Plants and Plant Parts
Sec. 301.10 Definitions.
Move (moved, movement). Shipped, offered to a common carrier for
shipment, received for transportation or transported by a common
carrier, or carried, transported, moved, or allowed to be moved.
State. Any State, territory, district, or possession of the United
States.
Sec. 301.11 Notice of quarantine; prohibition on the interstate
movement of certain imported plants and plant parts.
(a) In accordance with part 319 of this chapter, some plants and
plant parts may only be imported into the United States subject to
certain destination restrictions. That is, under part 319, some plants
and plant parts may be imported into some States or areas of the United
States but are prohibited from being imported into, entered into, or
distributed within other States or areas, as an additional safeguard
against the introduction and establishment of foreign plant pests and
diseases.
(b) Under this quarantine notice, whenever any imported plant or
plant part is subject to destination restrictions under part 319:
(1) The State(s) or area(s) into which the plant or plant part is
allowed to be imported is quarantined with respect to that plant or
plant part; and
(2) No person shall move any plant or plant part from any such
quarantined State or area into or through any State or area not
quarantined with respect to that plant or plant part.
Subpart--Unshu Oranges--[Removed and Reserved]
3. Subpart-Unshu Oranges, consisting of Sec. 301.83, is removed and
reserved.
Done in Washington, DC, this 10th day of November 1997.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-30107 Filed 11-14-97; 8:45 am]
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