Interstate Movement of Imported Plants and Plant Parts

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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