[Federal Register Volume 79, Number 27 (Monday, February 10, 2014)]
[Notices]
[Pages 7636-7639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02764]



[[Page 7636]]

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

[Docket No. APHIS-2009-0101]


Response to Petitions for the Reclassification of Light Brown 
Apple Moth as a Non-Quarantine Pest

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: We are notifying the public of our decision to maintain our 
classification of the light brown apple moth (LBAM, Epiphyas 
postvittana [Walker]) as a quarantine pest. In making this decision, 
the Animal and Plant Health Inspection Service (APHIS) evaluated the 
possibility of and impact from reclassifying LBAM from an actionable, 
quarantine-significant pest to a non-actionable, non-quarantine pest. 
By maintaining a regulatory program for LBAM, APHIS is seeking to 
minimize the further spread of the moth in the United States and 
maintain foreign trade markets for our producers. This decision is 
based on our evaluation of data submitted by the two petitioners 
seeking the reclassification of LBAM, our analysis of other scientific 
data, and comments received from the public in response to our previous 
notice announcing the availability of our revised draft response to 
those petitions.

DATES: Effective Date: February 10, 2014.

ADDRESSES: You may read the documents referenced in this notice and the 
comments we received 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) 7997039 before coming. Those 
documents are also available on the Internet on the Regulations.gov Web 
site at http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0101.

FOR FURTHER INFORMATION CONTACT: Ms. Andrea Simao, National Policy 
Manager, Pest Management, PPQ--Plant Health Programs, APHIS, 4700 River 
Road Unit 26, Riverdale, MD 20737-1231; (301) 851-2067.

SUPPLEMENTARY INFORMATION: 

Background

    Light brown apple moth (Epiphyas postvittana [Walker]) (LBAM) is a 
plant pest native to Australia with a broad host range of over 2,000 
plant species, including stone fruit (peaches, plums, nectarines, 
cherries, and apricots), apples, pears, grapes, and citrus. LBAM larvae 
feed on the leaves and fruit of host plants and, under appropriate 
conditions, may result in significant damage. To date, natural enemies 
of leaf rollers have not impacted LBAM populations in the infested 
areas of California and few predators or parasites of LBAM have been 
observed.
    LBAM was detected in the late 1800s in Hawaii. The interstate 
movement from Hawaii of cut flowers, fruits and vegetables, plants, and 
portions of plants, including LBAM host material, is currently 
prohibited unless the articles are first inspected and found free of 
plant pests (including LBAM) or are treated for plant pests.
    Moths suspected of being LBAM were detected in Alameda and Contra 
Costa Counties, CA, in February 2007, and were subsequently confirmed 
as LBAM on March 16, 2007. Due to California's cooler climate and the 
potential impact of LBAM on a wide range of crops, a response program 
has been conducted by the State of California with support from the 
Animal and Plant Health Inspection Service (APHIS) of the United States 
Department of Agriculture.
    APHIS' current regulatory framework and response program for LBAM 
is outlined in a Federal Order, which was issued on June 13, 2012, to 
prevent the further spread of LBAM from infested to noninfested areas. 
The order established restrictions on the interstate movement of 
regulated articles from areas where LBAM infestations are known to 
exist. Federal Orders were also in place prior to June 13, 2012, to 
prevent the further spread of LBAM from infested to noninfested areas.
    On September 12, 2008, and February 4, 2009, petitions were 
submitted to the Secretary of Agriculture requesting that APHIS 
reclassify LBAM from an actionable, quarantine-significant pest to a 
non-actionable, non-quarantine pest and that APHIS remove the Federal 
restrictions placed on the interstate movement of LBAM host articles 
from areas where the pest had been detected. The petitions also 
questioned APHIS' ability to eradicate LBAM, the appropriateness of 
technologies used to support the eradication program, the potential 
impacts of these technologies on the environment and on human health 
and safety, and the effectiveness of the communication strategies used 
to inform the public about the LBAM program.
    APHIS requested that the National Academy of Sciences (NAS) conduct 
an independent review of our draft response to the petitions. Based on 
the NAS' findings and recommendations, APHIS revised its initial draft 
response to the petitions. On March 15, 2010, APHIS published a notice 
\1\ in the Federal Register (75 FR 12172-12173, Docket No. APHIS-2009-
0101) announcing the availability, for review and comment, of our 
revised draft response to the petitions. We solicited comments for 60 
days through May 14, 2010, and received 114 comments by that date. 
Three commenters supported the continued regulation of LBAM as a 
quarantine pest. The remaining commenters expressed concerns regarding 
the continued regulation of LBAM as a quarantine pest. These concerns 
are discussed below by topic.
---------------------------------------------------------------------------

    \1\ To view the notice, draft response, and the comments we have 
received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-
2009-0101.
---------------------------------------------------------------------------

Reclassification

    The majority of commenters requested that we reclassify LBAM as a 
non-quarantine pest.
    LBAM meets the Plant Protection Act's (PPA) definition of a plant 
pest. The PPA defines the term ``plant pest'' as any living stage of 
protozoan, nonhuman animal, parasitic plant, bacterium, fungus, virus 
or viroid, infectious agent or other pathogen, or any article similar 
to or allied with any of the previous articles that can directly or 
indirectly injure, cause damage to, or cause disease in any plant or 
plant product.
    In addition to concurring with APHIS' conclusion that LBAM meets 
the definition of a plant pest under the PPA, the NAS reviewers agreed 
that LBAM also met the definitions of quarantine pest as defined in the 
International Plant Protection Convention and of an alien species per 
Executive Order 13112, ``Invasive Species.'' As NAS noted, APHIS 
demonstrated that LBAM is not native, is present within the United 
States in a limited distribution, and may cause economic harm.
    Due to its extensive host range and potential to establish, LBAM 
continues to be a significant concern to foreign trading partners as 
well as to States not currently infested with LBAM and which are at 
risk of becoming infested. A key reason for classifying and continuing 
to classify LBAM as a reportable/actionable pest is the potential 
economic impact associated with the detection and spread of the pest to 
areas in the United States where it could become established or where 
it might be introduced seasonally. In

[[Page 7637]]

calendar year 2007, the value of sales of potential LBAM hosts among 
the at-risk States totaled $69.4 billion, which represented 52 percent 
of the total value of all reported plant sales within at-risk States.
    To date, APHIS has received two Special Need Requests under our 
regulations in
    7 CFR part 301.1-2 from States seeking APHIS approval for State 
restrictions that are in addition to those imposed by the Federal 
program for nursery products from California to further ensure 
protection from the interstate movement of LBAM in commerce. Should 
APHIS reclassify LBAM as a nonactionable pest, other States have 
indicated that they would likely enact their own quarantines for LBAM 
that would restrict the movement of articles from California. Producers 
would then have to meet varying and perhaps stricter requirements for 
each State to which they ship their products, most likely resulting in 
increased costs for both production and LBAM control. Without 
sufficient regulations to demonstrate to trading partners that our 
efforts are successful in minimizing the impacts of LBAM within 
California, the ability of these industries to export internationally 
or domestically would be compromised.
    One commenter asked that the quarantine for intrastate movement be 
lifted, stating that intrastate movement restrictions are burdening 
local market producers.
    The intrastate movement of LBAM host articles is regulated by the 
California Department of Food and Agriculture (CDFA) not APHIS, so we 
cannot make the changes requested in this comment.
    Several commenters expressed concern that the LBAM program remains 
focused on eradication as the goal.
    In March 2010, APHIS announced through a press release as well as 
via calls with stakeholders that the objective of the LBAM program has 
changed from eradication to suppression and control of the moth's 
spread into noninfested areas of the United States.

Introduction Into the United States

    Many commenters disagreed with APHIS' designation of LBAM as a 
newly introduced pest, stating that trapping surveys conducted prior to 
2005 were inadequate to detect the presence of LBAM and that 
independent scientists believe that LBAM may have been in California 
for 10 to 30 years based upon the number of LBAM interceptions at the 
ports of entry. Several commenters stated that the idea of LBAM being 
recently introduced was inconsistent with invasive pest literature, 
which indicates that new plant pest invaders require a long adjustment 
period and that early stages of invasion are difficult to detect.
    The lack of any LBAM findings in the data from a 2005 Cooperative 
Agricultural Pest Survey in the areas of California currently infested 
with LBAM show that it is unlikely that LBAM has been present in the 
United States for a decade or more. Additionally, trapping surveys 
conducted by growers in the San Francisco and Monterey Bay areas, CA, 
in 2006, did not detect the presence of LBAM prior to the initial 
detection in Alameda and Contra Costa Counties, CA, in 2007.
    Although LBAM had previously been intercepted at ports of entry, 
this does not demonstrate that the moth had become established within 
the United States. No LBAM were detected beyond its known distribution 
in California in State-based surveys conducted nationwide in 2008 and 
2009. In addition, since the publication of the petition response, the 
journal American Entomologist published an article entitled ``Biology, 
Identification, and History of the Light Brown Apple Moth, Epiphyas 
postvittana (Walker) (Lepidoptera: Tortricidae: Archipini) in 
California,'' \2\ that stated that surveillance over the past 40 years 
for LBAM specifically, as well as other Lepidoptera, failed to detect 
the moth.
---------------------------------------------------------------------------

    \2\ Brown, John W., Epstein, Marc E., Gilligan, Todd M., Passoa, 
Steven C., Powell, Jerry A., ``Biology, Identification, and History 
of the Light Brown Apple Moth, Epiphyas postvittana (Walker) 
(Lepidoptera: Tortricidae: Archipini) in California,'' American 
Entomologist, vol. 56, No. 1, pp. 34-43 (Spring 2010).
---------------------------------------------------------------------------

    One commenter stated that since LBAM has been established in the 
United States for many years, there is no reason to continue regulating 
it. Two commenters stated that the genetic diversity of the LBAM 
population present in California supports the idea that there have been 
multiple introductions of LBAM, thereby suggesting LBAM was likely 
present prior to detection in 2007.
    While two independent analyses of mitochondrial DNA indicate that 
multiple introductions of LBAM in Northern California may have 
occurred, a single large invasion cannot be ruled out.\3\ \4\ The 
analyses do not confirm that LBAM was established prior to detection in 
2007 since multiple, recent introductions occurring within a single 
year may have been possible.
---------------------------------------------------------------------------

    \3\ Rubinoff, D., B.S. Holland, M.S. Jose, and J.A. Powell. 
(2011) Geographic proximity not a prerequisite for invasion: Hawaii 
not the source of California invasion by light brown apple moth 
(Epiphyas postvittana). PLoS ONE, Vl 6 (1): e16361.
    \4\ Tooman, L., C.J. Rose, C. Carraher, D.M. Suckling, S. Rioux-
Pasquette, L.A. Ledezma, T.M. Gilligan, M. Epstein, N.B. Barr, and 
R.D. Newcomb. (2011) Global mitochondrial population genetics of the 
invasive pest, Epiphyas postvittana. Journal of Economic Entomology, 
vol. 104, No. 5, pp. 1706-1719 (2011).
---------------------------------------------------------------------------

Modeling

    Several commenters expressed concern that the North Carolina State 
University APHIS Plant Pest Forecasting System (NAPPFAST) model 
inaccurately determined the potential for LBAM establishment and 
economic damage. One commenter stated that one of the flaws of the 
model was that it lacked LBAM detectability metrics and relied on 
qualitative statements rather than quantitative evidence. Several 
commenters expressed their concern that the science used to determine 
the APHIS response was inaccurate, including the climatic modeling used 
to predict crop losses and economic damages.
    In response to these concerns, APHIS invited Dr. Andrew Gutierrez 
from the University of California, Berkeley, to meet and discuss 
potential predictive modeling approaches that may be useful to APHIS in 
better understanding pest spread and distribution. Dr. Gutierrez 
suggested that APHIS also use Climex and Demographic models to 
understand and predict LBAM spread and distribution. As discussed 
below, APHIS also used these other modeling approaches recommended by 
Dr. Gutierrez that explore the influence of ecological factors on pest 
populations rather than relying predominantly on temperature-based 
modeling.
    The initial output from the NAPPFAST, Climex, and Demographic 
models estimated areas suitable for LBAM establishment. Most 
importantly, all three model outputs estimated that significant areas 
of the United States, particularly in the Southeast, were suitable for 
LBAM establishment. All models are in general agreement for areas 
estimated to be unsuitable for establishment based on cold 
temperatures. The Climex and Demographic models agreed that some areas 
in the Southwestern United States are unsuitable for LBAM establishment 
due to high temperatures. The NAPPFAST model, which does not currently 
incorporate high temperature mortality, disagrees and probably 
overestimated suitable areas in the Southwest.

[[Page 7638]]

Trapping

    Several commenters stated that the increase in LBAM trapping finds 
may be due to an increase in trapping efficiency rather than to an 
increase in LBAM populations. One commenter stated that the increase in 
LBAM trap finds is irrelevant because it does not indicate potential 
for damage.
    The trapping equipment has not changed and protocols for delimiting 
a detection remained constant until October 2012. The increased trap 
finds indicate that LBAM is spreading into new areas, increasing the 
potential for damage. While trapped moths by themselves do not 
demonstrate damage, the potential harm caused by LBAM has been 
discussed above and is further discussed below.

Chemicals

    The majority of commenters expressed concern regarding the impacts 
on the environment and human and animal health associated with the use 
of pesticides and chemicals to control LBAM. The commenters expressed 
concern that chemicals used for the control of LBAM had not been tested 
on humans and that formulations had not been disclosed. Many commenters 
stated that LBAM is present in other countries and that it is 
considered a minor pest which is easily and cost-effectively managed as 
a crop-quality issue.
    Under the National Environmental Policy Act of 1969 (NEPA) as 
amended (42 U.S.C. 4321 et seq.), APHIS is required to analyze our 
proposed control actions to determine if they will have an adverse 
effect on the environment before implementing the actions. In 2008, 
APHIS completed a programmatic environmental assessment for LBAM 
(available at http://www.aphis.usda.gov/plant_health/ea/downloads/lbam-treatmentprog-02-14-08.pdf), which evaluated two approaches: No 
action and treatment alternative. The treatment alternative consisted 
of maintaining the then applicable Federal Quarantine Order to prevent 
the destructive spread of the LBAM infestation, as well as implementing 
an LBAM eradication program in California to stop the further spread of 
LBAM in California. Because damage caused by LBAM can significantly 
threaten agricultural production in the United States, APHIS determined 
that the treatment alternative was the best approach to mitigating 
these effects and that no significant impact on human health or the 
environment would result from the proposed LBAM eradication program. 
That Finding of No Significant Impact is available at http://www.aphis.usda.gov/plant_health/ea/downloads/lbam-fonsi-pheremone.pdf.
    The United States Environmental Protection Agency (EPA) administers 
regulations for the protection of human health and the environment. In 
2001, EPA approved the organic pheromone Checkmate for use in the 
United States, finding that it did not have adverse impacts on human 
health. This pheromone is used to suppress LBAM and has no known 
biological activity in other insect species. The pheromone simulates 
the female LBAM odor to attract and confuse the male LBAM, making it 
difficult for the males to find a female moth for mating. An analysis 
of the pheromone formulation indicated that if brought into contact 
with either the eye or skin it may cause slight irritation. However, 
this contact is unlikely to occur since the pheromone is distributed 
via a plastic tube dispenser that is secured to trellises, fences, and 
other fixtures.
    One commenter stated that there is no evidence to suggest that 
using mating disruption via pheromones, either alone or in conjunction 
with other methods, is able to successfully eradicate an insect 
population.
    The response program uses a multi-layered control and suppression 
strategy for LBAM that includes mating disruption, pesticide 
application, sterile insect technique, biological control, ongoing 
surveys, and regulatory controls on agricultural commodities moving out 
of the quarantined area. Mating disruption has been extensively studied 
and used successfully in Australia and New Zealand to minimize LBAM 
population densities.
    Several commenters stated that our analysis of the impacts of LBAM 
and the effectiveness of natural controls relied on outdated 
information. One commenter noted that the APHIS petition response cites 
data from the 1930s to illustrate LBAM damage before the widespread use 
of organophosphates, but stated that the data is flawed because 
pesticides in use in the 1930s have general effects similar to the 
effects of organophosphates, namely eliminating LBAM's natural 
predators.
    APHIS' pest response programs are developed through analysis and 
evaluation of the invasive pest, including historical information, its 
behavior in similar environments, and possible control methods. APHIS 
initiates technical working groups comprised of entomologists from 
around the world. The LBAM working group, considering different 
response options, identified a multi-layered response control and 
suppression strategy including mating disruption, pesticide 
application, sterile insect technique, and biological control.
    Available scientific literature suggests that natural control can 
be sporadic and incapable of preventing economic losses (Nicholls, 
1934; Lloyd et al., 1970; Collyer & van Geldermalsen, 1975; Buchanan, 
1977). For example, in the United States, the use of biological control 
alone generally has not been sufficient to prevent economically 
significant damage to apple crops by tortricid pests, such as LBAM.

Integrated Pest Management

    Several commenters expressed concern that the program has not taken 
into account non-chemical measures for controlling the LBAM population. 
One commenter suggested that the integrated fruit production program 
used in New Zealand to control LBAM be used in California. This program 
does not use pesticides.
    The LBAM program has incorporated integrated pest management (IPM) 
techniques into the overall LBAM control and suppression strategy. In 
partnership with industry, universities, and the CDFA, APHIS developed 
a manual of best management practices to assist the nursery industry in 
shipping clean products. This manual includes required and recommended 
practices that help nurseries mitigate LBAM. Examples include 
establishing physical barriers around nursery perimeters, adopting 
cultural and sanitation practices, and isolating and protecting 
inspected plants prior to shipment. The IPM techniques, including 
principles identified in New Zealand, are used along with mating 
disruption, sterile insect technique, chemical treatments, and 
biological control.

Economic Effects

    Many commenters expressed concern regarding the economic effects of 
the LBAM quarantine on domestic growers and stated that the quarantine 
benefits foreign growers because American growers are required to have 
LBAM-free fields in order to ship interstate while foreign growers are 
required to have only LBAM-free shipments. Several commenters expressed 
concern that organic and small-scale family farms are being forced to 
either use pesticides, which renders them nonorganic, or shut down 
their farms.
    The purpose of the LBAM quarantine is to protect noninfested areas 
of the United States from the artificial spread of the moth via the 
movement of host materials and to keep open export

[[Page 7639]]

markets for U.S. products that might otherwise be closed due to the 
presence of LBAM in the United States. We agree that the introduction 
of LBAM has led to increased costs for U.S. producers. However, 
implementation of the regulatory framework has maintained domestic and 
international markets with, for example, Canada and Mexico, for 
California agricultural exports. It is likely that some noninfested 
States would enact restrictions on the movement of host material to 
safeguard against LBAM spread if there were no Federal program. 
California producers would then need to meet potentially varying 
requirements for shipments to each State, which could lead to both 
increased pesticide use and increased operational costs.
    The LBAM program requires that shipments containing LBAM host 
materials only be free of LBAM prior to movement from the quarantined 
area; this requirement is parallel to the requirements for foreign 
shipments. There are several ways for producers to meet this 
requirement, including applying organic treatments, such as Spinosad 
and horticultural oils; applying chemical treatments; or implementing 
best management practices. Such practices include training of staff, 
scouting and monitoring of property to determine the need for 
treatments, and maintaining management records.
    Many commenters stated that APHIS has overstated the damage done by 
LBAM and the potential for damage by LBAM; that the LBAM program is 
expensive and wasteful; and that plants listed as potential LBAM host 
plants were not hosts of LBAM. Many commenters stated that the only 
evidence of LBAM damage came from two organic berry fields in 2009, and 
that it was not conclusively determined that the pest that attacked 
those fields was LBAM.
    APHIS' cost-benefit analysis indicates that if LBAM were to be 
reclassified as a non-actionable pest and APHIS' regulatory program for 
LBAM to be terminated, annual sales losses from LBAM damages of at 
least approximately $694 million would occur (Fowler et al., 2009). 
Because of the APHIS regulatory program, the amount of avoided losses 
in annual sales, in comparison with the Federal funding available in 
the LBAM emergency response effort of almost $100 million, indicates a 
potential positive benefit-to-cost ratio of at least 6.9 to 1. This 
does not include potential environmental losses due to factors such as 
increased pesticide use and other costs associated with widespread 
establishment of the pest. Additionally, deregulation of LBAM 
domestically is likely to trigger increased restrictions for LBAM-host 
commodities by trading partners, which are expected to have a much 
greater impact on American farms if LBAM were allowed to spread beyond 
the current quarantined area. The cost-benefit analysis supports our 
conclusion that LBAM is an economically important invasive pest that 
meets the criteria for Federal regulation, including phytosanitary 
regulations and mandatory procedures with the objective of containment 
and suppression as an actionable quarantine pest.

Miscellaneous

    One commenter stated that APHIS was legally required to submit its 
response to the petitions to reclassify LBAM to NAS for review.
    There are no requirements for petition responses to be reviewed by 
third parties. APHIS elected to submit the revised petition response to 
NAS.
    One commenter supported the continued LBAM quarantine, but stated 
that the current LBAM program is in need of review because it does not 
take into account the additional regulatory response that will be 
needed when LBAM populations expand into other areas of California and 
the United States. The commenter further stated that the regulations 
for the movement of cut plant material and nursery stock need to be 
strengthened. One commenter also supported the continued LBAM 
quarantine, but stated that APHIS should continually review the 
quarantine and lift it if the pest is found outside of the quarantined 
areas and the quarantine becomes uneconomical.
    We continually review the LBAM program, as well as other pest 
programs, to ensure that the program's goals are being met. In the 
event that LBAM is found within the continental United States outside 
of California, APHIS and the affected State(s) will take appropriate 
action, which may include additional detection activities and 
regulatory protocols, to control its spread.
    Therefore, for the reasons discussed in our draft responses to 
petitions and in this document, we are retaining our classification of 
LBAM as an actionable quarantine pest to prevent its further spread 
into noninfested areas of United States and to maintain trade markets 
for U.S. agricultural products.

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.

    Done in Washington, DC, this 3rd day of February 2014.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2014-02764 Filed 2-7-14; 8:45 am]
BILLING CODE 3410-34-P