[Federal Register Volume 65, Number 107 (Friday, June 2, 2000)]
[Rules and Regulations]
[Pages 35261-35265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13931]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 00-034-1]


Plum Pox

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are quarantining part of Adams County, PA, due to the 
detection of plum pox in that region and are restricting the interstate 
movement of certain articles from the quarantined area that present a 
risk of transmitting plum pox. This action is necessary on an emergency 
basis to prevent the spread of plum pox to noninfested areas of the 
United States.

DATES: This interim rule is effective on June 2, 2000. We invite you to 
comment on this docket. We will consider all comments that we receive 
by August 1, 2000.

ADDRESSES: Please send your comment and three copies to: Docket No. 00-
034-1 Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 4700 
River Road, Unit 118, Riverdale, MD 20737-1238.
    Please state that your comment refers to Docket No. 00-034-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue, SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer, 
USDA,

[[Page 35262]]

APHIS, PPQ, 4700 River Road Unit 134, Riverdale, MD 20737; (301) 734-
8899.

SUPPLEMENTARY INFORMATION:

Background

    We are amending the ``Domestic Quarantine Notices'' in 7 CFR part 
301 by adding a new subpart, ``Plum Pox,'' composed of new Secs. 301.74 
through 301.74-4 and referred to below as the regulations. These 
regulations quarantine portions of Adams County, PA, due to the 
detection of plum pox and restrict the interstate movement of certain 
articles from the quarantined area that present a risk of transmitting 
plum pox.
    Plum pox is an extremely serious viral disease of plants that can 
affect many Prunus (stone fruit) species, including plum, peach, 
apricot, almond, nectarine, and sweet and tart cherry. A number of wild 
and ornamental Prunus species may also be susceptible to this disease. 
Infection eventually results in severely reduced fruit production, and 
the fruit that is produced is often misshapen and blemished. Plum pox 
virus is transmitted locally by a variety of aphid species as well as 
by budding and grafting with infected plant material. It spreads over 
longer distances through movement of infected budwood, nursery stock, 
and other plant parts. The strain of plum pox detected in Adams County, 
PA--the D strain--is not known to be transmitted by seed or fruit. This 
particular strain in Pennsylvania is also not known to infect cherry. 
There are no effective methods for treating trees or other plant 
material infested with plum pox. There are also no effective treatments 
to prevent the onset of plum pox other than eradication of nearby plant 
material already identified as infected. In Europe, plum pox has been 
present for a number of years and is considered to be the most serious 
disease affecting susceptible Prunus varieties.
    Recent delimiting surveys of orchards have established that 
portions of Adams County, PA, in the area of Latimore Township and 
Huntington Township are infested with plum pox. Prior to this 
discovery, plum pox had not been detected in the United States.
    Officials of the Animal and Plant Health Inspection Service (APHIS) 
and the Pennsylvania Department of Agriculture (PDA) have begun an 
intensive survey and eradication program in and around the infested 
area. The PDA has also instituted a quarantine encompassing Latimore 
and Huntington Townships in Adams County, PA, the area where plum pox 
is now known to be present. The PDA quarantine prohibits any movement 
of stone fruit trees (including nursery stock) and stone fruit budwood 
within the quarantined area as well as movement of these same regulated 
articles out of the quarantined area into other regions of 
Pennsylvania. There is no restriction on the movement of fruit since 
there is no evidence that the virus is spread from the fruit. Federal 
regulations are necessary in order to restrict the interstate movement 
of these same regulated articles and prevent the spread of plum pox to 
noninfested areas of the United States. This interim rule establishes 
those Federal regulations, which are described below.

Section 301.74--Restrictions on Interstate Movement of Regulated 
Articles

    Section 301.74 prohibits the interstate movement of regulated 
articles from quarantined areas except in accordance with the 
regulations.

Section 301.74-1--Definitions

    Section 301.74-1 contains definitions of the following terms: 
Administrator, Animal and Plant Health Inspection Service, Departmental 
permit, infestation (infested, infected), inspector, interstate, moved 
(move, movement), person, Plant Protection and Quarantine, plum pox, 
quarantined area, regulated article, and State.

Section 301.74-2--Regulated Articles

    Certain articles present a significant risk of spreading plum pox 
if they are moved from quarantined areas without restrictions. We call 
these articles regulated articles. Paragraphs (a) and (b) of 
Sec. 301.74-2 list the following as regulated articles:
     All plant material and plant parts of Prunus (stone fruit) 
species other than P. avium, P. cerasus, P. effusa, P. laurocerasus, P. 
mahaleb, P. padus, P. sargentii, P. serotina, P. serrula, P. serrulata, 
P. subhirtella, P. yedoensis, and P. virginiana, except for seeds and 
fruit that is free of leaves and other plant parts. This includes, but 
is not limited to, trees, seedlings, root stock, budwood, branches, 
twigs, and leaves.
     Any other product or article that an inspector determines 
to present a risk of spreading plum pox when the inspector notifies the 
person in possession of the product or article that it is subject to 
the restrictions in the regulations.

Section 301.74-3--Quarantined Areas

    Paragraph (a) of Sec. 301.74-3 provides the criteria for the 
inclusion of States, or portions of States, in the list of quarantined 
areas. Any State or portion of a State in which plum pox is detected 
through inspection and laboratory testing, or in which the 
Administrator has reason to believe that plum pox is present, will be 
listed as a quarantined area. In addition, an area will be designated 
as a quarantined area when the Administrator considers it necessary due 
to the area's inseparability for quarantine enforcement purposes from 
localities in which plum pox has been detected.
    Paragraph (a) of Sec. 301.74-3 also provides that we will designate 
less than an entire State as a quarantined area if we determine that 
the State has adopted and is enforcing restrictions on the intrastate 
movement of regulated articles that are substantially the same as those 
imposed on the interstate movement of regulated articles and that the 
designation of less than the entire State as a quarantined area will 
prevent the interstate spread of plum pox.
    The boundary lines that delimit the portion of a State to be 
designated as a quarantined area may vary due to factors such as the 
location of host material that is a source of infestation, nearby 
transportation centers such as bus stations and airports, the pattern 
of persons moving in that State, the number and patterns of 
transmission of plum pox, and the availability of clearly identifiable 
lines to serve as boundaries.
    We have determined that it is not necessary to designate the entire 
State of Pennsylvania as a quarantined area because plum pox has not 
been detected in areas outside of Adams County, PA. In addition, 
Pennsylvania has adopted and is enforcing restrictions on the 
intrastate movement of regulated articles, and those restrictions are 
substantially the same as those we are imposing on the interstate 
movement of regulated articles. Therefore, in accordance with the 
criteria described in the previous paragraph, we have designated the 
following as quarantined areas: Latimore Township and Huntington 
Township, both of which are located in Adams County, PA.
    Paragraph (b) of Sec. 301.74-3 provides that we may temporarily 
designate any other area in a State as a quarantined area should we 
determine that the nonquarantined area meets the criteria for 
designation as a quarantined area described in Sec. 301.74-3(a). In 
such cases, we will give the owner or person in possession of the area 
a copy of the regulations along with written notice of the area's 
temporary designation as a quarantined area, after which time the 
interstate movement of any regulated article from the area will be 
subject to the regulations. This provision is necessary to prevent the 
interstate spread of plum pox during the interval between the time of 
detection and the

[[Page 35263]]

time a document establishing the quarantined area can be made effective 
and published in the Federal Register. If an area's designation as a 
temporary quarantined area is terminated, we will provide written 
notice of that termination to the owner or person in possession of the 
area as soon as is practicable.

Section 301.74-4--Conditions Governing the Interstate Movement of 
Regulated Articles From Quarantined Areas

    This section prohibits the interstate movement of regulated 
articles from a quarantined area with two exceptions. First, an article 
can be moved by APHIS or another agency of the U.S. Department of 
Agriculture for experimental or scientific purposes. Such articles must 
be moved in accordance with a Departmental permit issued by the 
Administrator under conditions specified on the permit to prevent the 
spread of plum pox.
    Second, articles which originate from outside the quarantine area 
may pass through the quarantine area as long as the shipment includes a 
waybill that indicates the point of origin. Such articles that are 
merely passing through the quarantined area must be moved in an 
enclosed vehicle or completely covered to prevent access by aphids 
while traveling through the quarantined area. Such articles must not be 
uncovered, unpacked, or unloaded while in the quarantined area.

Emergency Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that an emergency exists that warrants publication of 
this interim rule without prior opportunity for public comment. 
Immediate action is necessary to prevent the spread of plum pox to 
noninfested areas of the United States.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make this 
action effective less than 30 days after publication. We will consider 
comments that are received within 60 days of publication of this rule 
in the Federal Register. After the comment period closes, we will 
publish another document in the Federal Register. The document will 
include a discussion of any comments we receive and any amendments we 
are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. This 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 rule quarantines part of Adams County, PA, due to the 
detection of plum pox and restricts the interstate movement of certain 
articles from the quarantined area that present a risk of transmitting 
the strain of plum pox. This action is necessary on an emergency basis 
to prevent the spread of plum pox to noninfested areas of the United 
States.
    The overall economic effect of this interim rule is expected to be 
small. The quarantine to be imposed on Latimore Township and Huntington 
Township prohibits the movement of most stone fruit budwood, root 
stock, and other plant material from the quarantined area. Since the 
fruit itself is not a vector of the disease, the quarantine imposes no 
restrictions on the movement of fruit out of the quarantined area. 
Therefore, growers in the quarantined area are able to sell and move 
their fruit production without restriction.
    The quarantine does prohibit the movement of susceptible budwood 
and root stock. However, stone fruit growers move small quantities of 
plant material for commercial purposes. In 1999, there was a movement 
of 700 bud sticks (worth about $1 apiece) out of the quarantined area. 
In some years, there have been no movements.
    The prohibition on the movement of susceptible plant material would 
also affect nurseries. There is one small nursery in the quarantined 
area. However, it does very little, if any, business in the products 
subject to regulation under the quarantine. There are two other 
nurseries within Adams County, PA, but outside the quarantined area 
that have been affected by the plum pox outbreak, although not by these 
regulations. Because these nurseries received plant material from the 
quarantined area, trees from their spring 2000 and spring 2001 peach, 
nectarine, plum, and apricot crop are unsalable. The losses are 
estimated to total $700,000. In addition, these two nurseries have also 
had to alter their operations due to their proximity to and association 
with the quarantined area where plum pox has been detected.

Effect on Small Entities

    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic effects of their rules on small entities. The 
Small Business Administration (SBA) defines a firm engaged in 
agriculture as ``small'' if it has less than $500,000 in annual 
receipts.
    Within the quarantined area of Latimore Township and Huntington 
Township, there are seven peach, plum, and nectarine producers with 
orchards totaling approximately 800 acres. Four of these producers are 
known to have orchards where plum pox has been detected. None of the 
producers in the quarantined area would be considered small under SBA 
guidelines. In Adams County as a whole, there are 124 stone fruit 
growers. Of these, about two-thirds would be considered small under SBA 
guidelines.
    There is one small nursery in the quarantined area. However, it 
does very little, if any, business in products subject to regulation 
under the quarantine. There are two nurseries in Adams County, PA, but 
outside the quarantined area, which have been affected indirectly by 
their proximity to plum pox detection in the quarantined area. Neither 
of these nurseries outside the quarantined area are considered small 
under SBA guidelines. Neither is affected by this rule.
    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.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for the plum pox program in Pennsylvania. The 
assessment provides a basis for the conclusion that implementing a 
quarantine to prevent the spread of plum pox to noninfested areas of 
the United States under the conditions specified in the interim rule

[[Page 35264]]

will not have a significant impact on human health and the natural 
environment. Based on the finding of no significant impact, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969, as amended (NEPA) (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection at USDA, room 
1141, South Building, 14th Street and Independence Avenue, SW., 
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. Persons wishing to inspect copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    This interim rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we are amending 7 CFR part 301 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. Part 301 is amended by adding a new ``Subpart Plum Pox,'' 
Secs. 301.74 through 301.74-4, to read as follows:
Subpart--Plum Pox
Sec.
301.74   Restrictions on interstate movement of regulated articles.
301.74-1   Definitions.
301.74-2   Regulated articles.
301.74-3   Quarantined areas.
301.74-4   Conditions governing the interstate movement of regulated 
articles from quarantined areas.

Subpart--Plum Pox


Sec. 301.74  Restrictions on interstate movement of regulated articles.

    No person may move interstate from any quarantined area any 
regulated article except in accordance with this subpart.\1\
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    \1\ Any properly identified inspector is authorized to stop and 
inspect persons and means of conveyance and to seize, qurantine, 
treat, apply other remedial measures to, destroy, or otherwise 
dispose of regulated articles a provided in seciton 10 of the Plant 
Quarantine Act (7 U.S.C. 164a) and sections 105 and 107 of the 
Federal Plant Pest Act (7 U.S.C. 150dd AND 150ff).
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Sec. 301.74-1  Definitions.

    The following definitions apply to this subpart.
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service. The Animal and Plant 
Health Inspection Service (APHIS) of the United States Department of 
Agriculture.
    Departmental permit. A document issued by the Administrator in 
which he or she affirms that interstate movement of the regulated 
article identified on the document is for scientific or experimental 
purposes and that the regulated article is eligible for interstate 
movement in accordance with Sec. 301.74-4 of this subpart.
    Infestation (infested, infected). The presence of plum pox or 
circumstances or symptoms that makes it reasonable to believe that plum 
pox is present.
    Inspector. Any employee of the Animal and Plant Health Inspection 
Service, United States Department of Agriculture, or other person 
authorized by the Administrator to enforce this subpart.
    Interstate. From any State into or through any other State.
    Moved (move, movement). Shipped, offered for shipment, received for 
transportation, transported, carried, or allowed to be moved, shipped, 
transported, or carried.
    Person. Any association, company, corporation, firm, individual, 
joint stock company, partnership, society, or other entity.
    Plant Protection and Quarantine. Plant Protection and Quarantine, 
Animal and Plant Health Inspection Service, United States Department of 
Agriculture.
    Plum pox. A plant disease caused by plum pox potyvirus that can 
affect many Prunus (stone fruit) species, including, but not limited 
to, almond, apricot, nectarine, peach, plum, and sweet and tart cherry. 
The strain of plum pox in Pennsylvania does not affect cherry trees.
    Quarantined area. Any State, or any portion of a State, listed in 
Sec. 301.74-3(c) of this subpart or otherwise designated as a 
quarantined area in accordance with Sec. 301.74-3(b) of this subpart.
    Regulated article. Any article listed in Sec. 301.74-2(a) or 
otherwise designated as a regulated article in accordance with 
Sec. 301.74-2(b), based on its susceptibility to the form or strain of 
plum pox detected in the quarantined area.
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.


Sec. 301.74-2  Regulated articles.

    The following are regulated articles:
    (a) All plant material and plant parts of Prunus (stone fruit) 
species other than P. avium, P. cerasus, P. effusa, P. laurocerasus, P. 
mahaleb, P. padus, P. sargentii, P. serotina, P. serrula, P. serrulata, 
P. subhirtella, P. yedoensis, and P. virginiana, except for seeds and 
fruit that is free of leaves and other plant parts. This includes, but 
is not limited to, trees, seedlings, root stock, budwood, branches, 
twigs, and leaves.
    (b) Any other product or article that an inspector determines to 
present a risk of spreading plum pox when the inspector notifies the 
person in possession of the product or article that it is subject to 
the restrictions in the regulations.


Sec. 301.74-3  Quarantined areas.

    (a) Except as otherwise provided in paragraph (b) of this section, 
the Administrator will list as a quarantined area in paragraph (c) of 
this section each State, or each portion of a State, in which plum pox 
has been detected through inspection and laboratory testing, or in 
which the Administrator has reason to believe that plum pox is present, 
or that the Administrator considers necessary to quarantine because of 
its inseparability for quarantine enforcement purposes from localities 
in which plum pox has been detected. Less than an entire State will be 
designated as a quarantined area if the Administrator determines that:
    (1) The State has adopted and is enforcing restrictions on the 
intrastate movement of the regulated articles that are substantially 
the same as those imposed by this subpart on the interstate movement of 
regulated articles; and

[[Page 35265]]

    (2) The designation of less than the entire State as a quarantined 
area will prevent the interstate spread of plum pox.
    (b) The Administrator or an inspector may temporarily designate any 
nonquarantined area in a State as a quarantined area in accordance with 
paragraph (a) of this section. The Administrator will give a copy of 
this regulation along with a written notice for the temporary 
designation to the owner or person in possession of the nonquarantined 
area. Thereafter, the interstate movement of any regulated article from 
an area temporarily designated as a quarantined area will be subject to 
this subpart. As soon as practicable, this area will be added to the 
list in paragraph (c) of this section or the designation will be 
terminated by the Administrator or an inspector. The owner or person in 
possession of an area for which the quarantine designation is 
terminated will be given notice of the termination as soon as 
practicable.
    (c) The areas described below are designated as quarantined areas:

Pennsylvania

    Adams County. The townships of Latimore and Huntington.


Sec. 301.74-4  Conditions governing the interstate movement of 
regulated articles from quarantined areas.

    The interstate movement of any regulated article from a quarantined 
area \2\ is prohibited except when:
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    \2\ Requirements under all other applicable Federal domestic 
plant quarantines and regulations must also be met.
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    (a) The regulated article is moved by the United States Department 
of Agriculture:
    (1) For an experimental or scientific purpose;
    (2) Pursuant to a Departmental permit issued by the Administrator 
for the regulated article;
    (3) Under conditions specified on the Departmental permit and found 
by the Administrator to be adequate to prevent the spread of plum pox; 
and
    (4) With a tag or label bearing the number of the Departmental 
permit issued for the regulated article attached to the outside of the 
container of the regulated article or attached to the regulated article 
itself if not in a container; or
    (b) The regulated article originated outside the quarantined area 
and:
    (1) Is moved in an enclosed vehicle or is completely enclosed by a 
covering (such as canvas, plastic, or other closely woven cloth) 
adequate to prevent access by aphids or other transmission agents of 
plum pox while in the quarantined area;
    (2) The regulated article's point of origin is indicated on the 
waybill; and
    (3) The regulated article must not be uncovered, unpacked, or 
unloaded while moving through the quarantined area.

    Done in Washington, DC, this 30th day of May 2000.
William R. DeHaven,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 00-13931 Filed 6-1-00; 8:45 am]
BILLING CODE 3410-34-U