[Federal Register Volume 73, Number 148 (Thursday, July 31, 2008)]
[Rules and Regulations]
[Pages 44615-44617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17592]



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  Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules 
and Regulations  

[[Page 44615]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2008-0080]
RIN 0579-AC81


Citrus Canker; Movement of Fruit From a Quarantined Area; Bag 
Markings

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations governing the interstate 
movement of fruit from an area quarantined for citrus canker to extend 
the temporary exception that allows fruit to be packed for interstate 
movement in bags that are clearly marked with only a limited 
distribution statement, if those bags are then packed in a box that is 
marked with both the limited distribution statement and the statement 
``Limited Permit: USDA-APHIS-PPQ.'' We are extending the ending date 
for this temporary exemption from August 1, 2008, to August 1, 2010. 
This action provides for the continued use of existing inventories of 
bags in which regulated fruit are packed while maintaining safeguards 
against the movement of regulated fruit to commercial citrus-producing 
States.

DATES: This interim rule is effective July 31, 2008. We will consider 
all comments that we receive on or before September 29, 2008.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0080 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2008-0080, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2008-0080.
    Reading Room: 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.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Senior Staff Officer, 
Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road, Unit 137, 
Riverdale, MD 20737-1231; 301-734-8899.

SUPPLEMENTARY INFORMATION:

Background

    Citrus canker is a plant disease caused by the bacterium 
Xanthomonas citri subsp. citri that affects plants and plant parts, 
including fresh fruit, 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 Sec. Sec.  301.75-1 through 301.75-14 of ``Subpart--
Citrus Canker'' (7 CFR 301.75-1 through 301.75-17, referred to below as 
the regulations). The regulations restrict the interstate movement of 
regulated articles from and through areas quarantined because of citrus 
canker and provide, among other things, conditions under which 
regulated fruit may be moved into, through, and from quarantined areas 
for packing. These regulations are promulgated pursuant to the Plant 
Protection Act (7 U.S.C. 7701 et seq.).
    On June 21, 2007, we published in the Federal Register (72 FR 
34180-34191, Docket No. APHIS-2007-0022) a proposal to amend the citrus 
canker regulations by modifying the conditions under which fruit may be 
moved interstate from quarantined areas. Among other things, we 
proposed to require that boxes in which fruit are packed be marked with 
the statement ``Limited Permit: USDA-APHIS-PPQ'' in addition to the 
limited distribution statement, ``Not for distribution in AZ, CA, HI, 
LA, TX, and American Samoa, Guam, Northern Mariana Islands, Puerto 
Rico, and Virgin Islands of the United States,'' that the regulations 
already required. We also proposed that only fruit that has been 
treated, inspected, and found free of visible symptoms of citrus canker 
would be allowed to leave packinghouses in boxes marked with the 
limited permit statement.
    We proposed adding the limited permit statement in order to help 
ensure that only fruit that was handled in accordance with all of the 
requirements in Sec.  301.75-7 would be moved interstate. In addition, 
the limited permit statement indicates under whose authority the 
distribution of the fruit to commercial citrus-producing States is 
prohibited, thus further assuring that packers and handlers comply with 
the limited distribution requirement. It was also our understanding 
that boxes and other containers in which fruit would be moving 
interstate would be large enough to bear the proposed limited permit 
statement, by adding either a sticker or stamp to the existing 
inventory of boxes or containers.
    We received comments on the proposed rule stating that bags of 
fruit, which are typically packed in boxes, also bore the limited 
distribution statement but that it was not practical to add the limited 
permit statement using a sticker or stamp, as the surface area of the 
label on bags was not large enough to accommodate the additional 
limited permit statement. Existing inventories of

[[Page 44616]]

bags would have to be destroyed, and new bags would have to be printed.
    On November 19, 2007, we published in the Federal Register (72 FR 
65171-65204, Docket No. APHIS-2007-0022) a final rule that required the 
limited permit and limited distribution statements on all boxes and 
containers in which regulated fruit is packaged for interstate 
movement, but provided a temporary exception for the use of bags that 
are marked only with the limited distribution statement. This exception 
was intended to allow industry to exhaust its existing inventory of 
bags pre-marked with the limited distribution statement.
    The regulations in paragraph (a)(5)(ii) of Sec.  301.75-7 have 
provided that, until August 1, 2008, fruit that meets all the 
requirements of Sec.  301.75-7 may be packed in bags that are clearly 
marked with the statement ``Not for distribution in AZ, CA, HI, LA, TX, 
and American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and 
Virgin Islands of the United States,'' as long as the bags of fruit are 
packed in boxes that are marked with both the limited permit and 
limited distribution statements. Fruit that does not meet all the 
requirements of Sec.  301.75-7 may not be packed in either bags or 
boxes that are marked with the limited distribution statement.
    We determined that this requirement would ensure that fruit moved 
interstate meets the requirements of Sec.  301.75-7 and would provide 
protection against the distribution of fruit to commercial citrus-
producing States because the bags must be packed in boxes that are 
marked with both the limited permit statement and the limited 
distribution statement, and because bagged fruit is not unloaded from 
the boxes in which it is shipped until it reaches the point of sale. 
Since the final rule became effective on November 19, 2007, there have 
been no instances where bags of fruit have been unloaded from the boxes 
in which they were shipped and distributed prior to the final point of 
sale. This requirement has provided an effective means of ensuring that 
the information regarding the permitted distribution of the fruit is 
apparent to enforcement personnel, distributors, and consumers.
    Recently, regulated entities have informed us that the existing 
inventory of bags marked only with the limited distribution statement 
has not yet been depleted. They have requested an additional 2 years to 
use their remaining inventory. Given that the provisions allowing the 
use of the existing bags have been working successfully, this interim 
rule extends the temporary exception until August 1, 2010, to allow for 
the depletion of the existing inventory of such bags. This action 
maintains the current safeguards against the movement of regulated 
fruit to commercial citrus-producing States. Because this exception 
will eventually expire, when regulated entities deplete their existing 
inventory of bags marked only with the limited distribution statement, 
they will replenish their inventory with bags marked with both the 
limited permit statement and the limited distribution statement, thus 
making clear under whose authority the distribution of the fruit to 
commercial citrus-producing States is prohibited.

Immediate Action

    This rule extends until August 1, 2010, a temporary exception that 
is scheduled to end on August 1, 2008. That exception allows fruit to 
be packed for interstate movement in bags if those bags are clearly 
marked with the limited distribution statement and if those bags are 
then packed in a container that is marked with both the limited permit 
statement and the limited distribution statement. Immediate action is 
warranted to alleviate what would otherwise be the negative economic 
effects on citrus packers who would have no practical option to comply 
with the regulations other than destroying their current inventory of 
bags pre-marked with the limited distribution statement and having 
replacement bags printed with both the limited permit and limited 
distribution statements. Under these circumstances, the Administrator 
has determined that prior notice and opportunity for public comment are 
contrary to the public interest and that there is good cause under 5 
U.S.C. 553 for making this action effective less than 30 days after 
publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). 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.

Executive Order 12866 and Regulatory Flexibility Act

    This interim 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.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities.
    We are amending the regulations to extend the temporary exception 
that allows fruit to be packed for interstate movement in bags that are 
clearly marked with only a limited distribution statement, if those 
bags are then packed in a box that is marked with both the limited 
distribution statement and the statement ``Limited Permit: USDA-APHIS-
PPQ.'' We are extending the ending date for this temporary exemption 
from August 1, 2008, to August 1, 2010. This action provides for the 
continued use of existing inventories of bags in which regulated fruit 
are packed while maintaining safeguards against the movement of 
regulated fruit to commercial citrus-producing States.
    APHIS has determined that displaying the limited permit language on 
boxes or other containers containing fruit for interstate movement is a 
sufficient mitigation for controlling the distribution of this fruit 
for the interstate market. Since the final rule became effective on 
November 19, 2007, there have been no instances where bags of fruit 
have been unloaded from the boxes in which they were shipped and 
distributed prior to the final point of sale.
    Additionally, the inventory of bags that had been printed prior to 
the November 19, 2007, final rule continues to be significant. The 
value of the current inventory of bags, in combination with the 
projected costs of printing new bags with the limited permit statement, 
has been estimated by industry to be up to $6 million. APHIS has 
determined that the adverse economic impact associated with having 
packers print new bags in order to comply with the regulations is not 
warranted.
    The current inventory of bags printed with the limited distribution 
statement, but not the limited permit statement, is expected to be 
depleted by August 1, 2010.
    APHIS does not believe small entities will be subject to 
significant economic impacts as a result of this interim rule, as its 
effect is to allow regulated entities to continue their current packing 
process. However, if the ending date of the exception was not extended, 
entities affected by the interim rule would not be able to deplete any 
current inventory of bags they may possess.
    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.

[[Page 44617]]

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 new information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects

7 CFR Part 301

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

0
Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


Sec.  301.75-7  [Amended]

0
2. In Sec.  301.75-7, paragraph (a)(5)(ii) is amended by removing the 
word ``2008'' and adding the word ``2010'' in its place.

     Done in Washington, DC, this 28th day of July 2008.
Cindy J. Smith,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-17592 Filed 7-30-08; 8:45 am]
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