NOTICES
DEPARTMENT OF AGRICULTURE
Order of Quarantine; Box Tree Moth
[54 Pa.B. 4004]
[Saturday, July 13, 2024]Recitals.
A. The Box Tree Moth, Cydalima perspectalis, is a new plant pest to the United States. This is a destructive insect to plants in the Buxus genus and not widely prevalent or distributed within or throughout the Commonwealth or the United States. This plant pest has been declared an actionable regulatory pest by the United States Department of Agriculture.
B. The Plant Pest Act (act of December 16, 1992, P.L. 1228, No. 162) (3 P.S. §§ 258.1—258.27) (Act) empowers the Pennsylvania Department of Agriculture (Department) to take various measures to detect, contain and eradicate plant pests. These powers include the authority, under Section 258.21 of the Act, to establish quarantines to prevent the spread of plant pests within this Commonwealth and to prevent or delay the introduction of the pest into the Commonwealth from any country, state, or territory. (3 P.S. § 258.21).
C. Under the authority of Section 258.20 of the Act (related to pests declared public nuisance), (3 P.S. § 258.20), the Department may declare a plant pest to be a public nuisance when it determines a plant pest to be dangerous or destructive to the agriculture, horticulture, or forests of this Commonwealth. For the reasons set forth in Paragraph A above, the Department declares Box Tree Moth, Cydalima perspectalis, to be a public nuisance.
D. Once a plant pest is declared a nuisance, ''It shall be unlawful for any person knowingly to permit any plant pest so declared to exist on his premises or to sell, offer for sale, give away or move any plants, plant products or other material capable of harboring the pest.'' (3 P.S. § 258.20).
E. Under the authority of Section 258.16 of the Act (related to notice of receipt of uncertified stock) the Department requires notification of nursery stock transported into this Commonwealth without a valid certificate of inspection issued by the proper out-of-state agency. ''When nursery stock is transported in this Commonwealth without a valid certificate of inspection issued by the proper out-of-state authority, the persons receiving the nursery stock must notify the department immediately. The nursery stock must be returned to the consignor or shipper or held for inspection as determined by the department.'' (3 P.S. § 258.16).
F. Where the Department suspects, detects or confirms Box Tree Moth, Cydalima perspectalis, the property, facility, premises, place, or area, along with any vehicle or means of conveyance, where it is suspected, detected, or confirmed shall be subject to this Order of Quarantine. (3 P.S. § 258.21).
Definitions.
Associated equipment and materials. Articles associated with production, movement, and sales, such as and including tractors, wagons, trucks, stands, benches, pots and containers, packing and transport materials.
Compost products. A mixture that consists largely of decayed organic matter and is used for fertilizing and conditioning land or landscaping and ornamental reasons, including chipped, dead, or decomposed nursery stock, chipped plant materials, soil, leaves, mulch or any combination thereof.
Landscape. To modify or ornament (a piece of land or natural landscape) by altering the plant cover including adding living or dead plants or plant parts or compost products or any combination thereof.
Nursery. A greenhouse, grounds, or premises on or in which nursey stock is propagated or grown for sale or distribution, including any grounds or premises on or in which nursey stock is being fumigated, treated, packed, stored or otherwise prepared or offered for sale or movement to other localities. (3 P.S. § 258.2).
Nursery production. The process of growing plants under intensive management for use in another location.
Nursery stock. All trees, shrubs, brambles, woody vines, woody florist stock, herbaceous perennials, vegetable plants, bedding and other annual herbaceous plants, their roots, cuttings, grafts, scions, buds, fruit pits, seeds and their parts for propagation, except bulbs, field crop seeds, vegetable seeds, flower seeds, regardless of where the material may have been grown or is growing. (3 P.S. § 258.2).
Out-of-state agency. A department, agency or authority, outside of the Commonwealth of Pennsylvania with the authority to regulate plant pests such as the Box Tree Moth, Cydalima perspectalis, or Buxus (sp.) within its state, territory, jurisdiction or commonwealth.
Systems approach. The application of multiple pest management measures, at least two of which act independently but with cumulative effect, to reach the appropriate level of phytosanitary protection for prevention of pest development and movement. A pest management plan developed using a Systems Approach will address critical control points which include but are not limited to: inspection of new plants, isolation, training, record keeping, survey, sanitation, shipping and returns.
Waste. Includes any material, compost product, nursery stock, landscape material, surplus substance or item that does not function or is no longer required for production or cannot be utilized for a job or intended purpose, including the inefficient or inappropriate use of such materials, products and substances and all associated materials, including pots and containers, packing and transport materials.
Order Under authority of Section 258.21 of the Act (3 P.S. § 258.21), and with the Recitals and Definitions previously listed incorporated into this Order of Quarantine by reference as though set forth in full, the Department orders the following:
1. Establishment of quarantine on any property, facility, premises, place or area where Box Tree Moth, Cydalima perspectalis, is confirmed. The Department will establish a quarantine and define the area of quarantine in a manner to prevent movement of material which has been exposed to, confirmed to harbor life stages of, or may be a carrier for, Box Tree Moth, Cydalima perspectalis, in any life stage. Quarantine boundaries will be established after an investigation and surveillance to determine the existence, distribution, exposure to, and severity of damage caused by, the Box Tree Moth, Cydalima perspectalis. An external quarantine is established by this Order of Quarantine to prevent further movement of Box Tree Moth, Cydalima perspectalis, into the Commonwealth.
2. Quarantine areas may be established by the Department based on any of the following:
(a) Confirmation of the plant pest at any in-state or out-of-state location, property, facility, nursery, premises, place, or area.
(b) Confirmation of the plant pest in any delivery of a host plant or potential host plant to a location, property, facility, nursery, premises, place, or area in the Commonwealth.
(c) Locations, properties, facilities, premises, places, or areas receiving shipments of host plants from a vendor, nursery or person known to have shipped contaminated plants to other locations.
(d) Confirmation of the plant pest at any out-of-state vendor, supplier, nursery, location, premises, facility, or place that delivers plant or plant products, nursery stock, host plants or potential host plants or host crops or potential host crops into the Commonwealth.
(e) Trace forward and trace back results indicating locations, properties, facilities, premises, places, or areas where cross contamination of host plants, occurred, or could have occurred.
(f) Nurseries, retailers, wholesalers, suppliers, or persons receiving plants, which may have multiple locations, properties, facilities, premises, places, or areas within the Commonwealth, where there is evidence of exposure to a shared plant production source, a motor vehicle, carrier, container, or other vessel that carried a host plant or was exposed to a contaminated host plant or other source of the plant pest.
(g) Locations, nurseries, retailers, wholesalers, suppliers, properties, facilities, premises, places, or areas where there is evidence of exposure to a motor vehicle, carrier, container, or other vessel that carried a host plant or was exposed to a contaminated host plant or other source of the plant pest.
3. Regulated articles and limitations imposed. The plant pest established by this Order of Quarantine—Box Tree Moth, Cydalima perspectalis, along with any nursery stock, plant, crop, associated equipment and materials, or object that may carry, host, harbor, serve as a reservoir for or spread the plant pest, are considered regulated articles under this Order of Quarantine and may not be moved out of the quarantined area or transported into or within this Commonwealth, unless done in accordance with the applicable requirements of Paragraphs 4, 5 and 6 of this Order of Quarantine. The following non-exhaustive list of items are considered associated equipment and materials that may carry the Box Tree Moth, Cydalima perspectalis:
(a) Any living life stage of the Box Tree Moth, Cydalima perspectalis.
(b) All plants and plant parts. This shall include, but is not limited to, all living, dead, infected, or non-infected nursery stock, budwood, scionwood, and produce and other material living, dead, cut, fallen including stumps, roots, branches, mulch, and composted and uncomposted chips.
(c) Brush, debris, bark, or yard waste.
(d) Landscaping, nursery, greenhouse and plant wholesale and retail waste.
(e) Leaves, and branches of infected or exposed Buxus genus.
(f) Any other associated equipment and materials or means of conveyance when it is determined by an authorized Department or out-of-state agency inspector or through phytosanitary or other means of Department or out-of-state agency approved inspection to present a risk of spread of Box Tree Moth, Cydalima perspectalis, in any life stage and is in or has been in proximity to such articles and articles presenting a high risk of artificial spread.
4. External quarantine: Buxus (sp.) nursery stock, plants, plant material, regulated articles and waste originating outside of the Commonwealth shall only be imported if: the originating out-of-state agency has conducted a phytosanitary or other inspection meeting the requirements of movement into this Commonwealth, or has entered into a compliance agreement, which meets the standards for movement into this Commonwealth, with the person shipping the regulated article. The out-of-state agency with authority to regulate Buxus (sp.) plant material shall verify and attest that all the following criteria are met:
(a) The regulated article will be moved in compliance with the provisions of this Order of Quarantine and any additional emergency conditions that the Department may impose under the Act in order to prevent the artificial spread of Box Tree Moth, Cydalima perspectalis.
(b) The regulated article, through the required inspection set forth in this Order of Quarantine, has been determined to be free of Box Tree Moth, Cydalima perspectalis, based on inspection.
(c) The regulated article has been grown, produced, manufactured, or stored in compliance with an out-of-state agency approved systems approach and safeguarded in a manner that, in the judgment of the Department and the out-of-state agency with regulatory authority, prevents the regulated article from presenting a risk of spreading Box Tree Moth, Cydalima perspectalis, as suggested by the USDA Federal Order on Box Tree Moth.
(d) All shipments of Buxus (sp.) shipped into this Commonwealth must be accompanied by a state Phytosanitary Certificate or shipping certificate which states: ''These plants were grown, produced, and shipped to meet conditions specified and are not known to have Box Tree Moth, Cydalima perspectalis.''
5. Documentation to accompany Buxus (sp.) in movement from a quarantined area. If a regulated article(s), delineated in Paragraph 3, above is to be moved outside of the quarantined area, the regulated article(s) must meet the following standards:
(a) Be plainly marked with the name and address of the consignor and any person utilized in processing the Buxus (sp.) for movement, and the name and address of the consignee.
(b) Movement shall only be done under a Department-issued and out-of-state agency with regulatory authority, and fully executed compliance agreement.
(c) A copy of a Department and out-of-state agency with regulatory authority-issued shipping certificate shall be securely attached to each regulated article itself or the container carrying each Buxus (sp.).
(d) A copy of a Department and out-of-state agency with regulatory authority-issued shipping certificate shall be attached to the consignee's copy of the accompanying waybill at all times during movement.
(e) The description on the Department and out-of-state agency with regulatory authority-issued shipping certificate, and on the waybill, shall contain detailed information sufficient to identify each Buxus (sp.).
(f) The consignor shall be responsible for compliance with the documentation standards set forth in this Order of Quarantine and shall assure the carrier furnishes the Department and out-of-state agency with regulatory authority-issued shipping certificate authorizing the movement of the regulated article(s) to the consignee at the destination of the shipment.
(g) The consignor shall be responsible for and issue pre-notification of Buxus (sp.) shipments to consignees following the receiving states requirements.
(h) The consignor shall pre-notify the consignee's out-of-state agency as determined by the receiving state.
(i) The consignor, carrier and the consignee shall keep a copy of the Department issued shipping certificate.
(j) All records shall be maintained by the consignee, consignor and carrier for a period of two (2) years.
(k) Such records shall be made available to the Department for inspection upon request.
6. Compliance agreements.
(a) In-state: The Department may enter into a compliance agreement with a person within this Commonwealth if:
(i) The person demonstrates an understanding of the requirements of this Order of Quarantine.
(ii) The person provides evidence that satisfies the Department that the person is capable of issuing shipping certificates in accordance with the requirements of this Order of Quarantine.
(b) Out-of-state: For allowance of out-of-state shipments, the Department will:
(i) Consider valid attestations and signed documentation of an inspection from an originating out-of-state agency that possesses regulatory authority regarding Buxus (sp.) and the regulated article as set forth in the Order of Quarantine.
(ii) The Department will honor a compliance agreement established by the originating out-of-state agency, so long as the compliance agreement contains terms consistent with the requirements established by the Department for interstate movement of regulated articles, and those set forth in this Order of Quarantine.
(c) Shipping certificate forms. The Department may, at its sole discretion, provide shipping certificates to, or authorize reproduction of the shipping certificates by, a person operating under a compliance agreement established in accordance with this paragraph, in the following instances:
(i) Where issued the shipping certificates may be completed and used for the movement of Buxus (sp.) and regulated articles that meet all the requirements of this Order of Quarantine and the compliance agreement.
(ii) Originals of each shipping certificate issued by a person operating under a compliance agreement shall be kept by that person for a period of two (2) years and shall be made available to the Department for inspection upon request.
7. Cancellation of a shipping certificate or compliance agreement. A compliance agreement or shipping certificate authorization, or both, may be terminated, in writing, by the Department whenever the Department determines that the holder of the compliance agreement or shipping certificate authorization, or both, has not complied with a provision of the Act, the Act's attendant regulations, this Order of Quarantine or the compliance agreement or shipping certificate. Termination shall become effective immediately upon receipt of the written termination. Upon termination, all remaining shipping certificates shall be destroyed and use of any shipping certificate by the person whose compliance agreement has been terminated shall be considered a violation of this Order of Quarantine and subject to all potential enforcement actions as set forth in the Act, the Act's attendant regulations, or this Order of Quarantine.
8. Federal requirements for interstate movement of articles. This Order of Quarantine is distinct from, and in addition to, any Federal statute, regulation or quarantine order addressing the movement of Buxus (sp.) and regulated articles from, to or within a quarantined area.
9. Contacting the Department. A person seeking information about the requirements of this Order of Quarantine, or a limited permit or certificate for movement of a regulated article(s), or a compliance agreement for intrastate movement of Buxus (sp.) or regulated article(s) shall contact the Department by mail at: Pennsylvania Department of Agriculture, Bureau of Plant Industry, Attention: Sarah Gettys, 2301 North Cameron Street, Harrisburg, PA 17110-9408, or via email at: sgettys@pa.gov.
10. Violations. In accordance with the provisions of Section 258.22 of the Act (3 P.S. § 258.22), it shall be unlawful to violate or fail to comply with any provision of the Act, regulations, or this Order of Quarantine. Failure to abide by the terms of this Order of Quarantine may result in the following:
(a) If the regulated article is determined to be positive for Box Tree Moth, Cydalima perspectalis, all Buxus, (sp.) plants, plant materials, nursery stock, regulated articles and waste from Buxus, (sp.) which are infected, may be infected or have been exposed, are subject to destruction as determined by the Department with the violator responsible for payment of the cost of destruction.
(b) The premises, area, building, vehicle, container, or article where the Buxus, (sp.) plants, plant materials, nursery stock, regulated articles, and waste from where Buxus, (sp.) was located, stored, produced, maintained or had contact with shall be subject to Department-approved methods of sanitation.
(c) When a person is determined by the Department to be a source of Box Tree Moth, Cydalima perspectalis, that person will be suspended from sending Buxus (sp.) to any address within the Commonwealth until such time as the following standards are met and are verified by the Department:
(i) The person shall produce Buxus (sp.) utilizing a state certification process which incorporates a systems approach for pest mitigation for pests such as Box Tree Moth, Cydalima perspectalis.
(ii) The person shall utilize suppliers or nurseries of Buxus (sp.) that have been officially inspected and licensed by an out-of-state agency.
(iii) Buxus (sp.) on any premise owned, leased, managed, or controlled by the person shall be held for 10 days in isolation from other Buxus (sp.) and subject to inspection and release by the appropriate out-of-state agency prior to movement.
(iv) Buxus (sp.) purchased by the person from a regulated area shall be held for 10 days in isolation from other Buxus (sp.) currently on any premise owned, leased, managed, or controlled by the person and subject to inspection and release by the appropriate out-of-state agency prior to movement.
(v) All conveyances, containers, boxes, and articles in contact with or utilized in transport of shall be maintained and sanitized in a manner to prevent the movement of Box Tree Moth, Cydalima perspectalis.
(vi) The Buxus (sp.) shall not be combined or commingled with other Buxus (sp.) so as to lose its individual identity during production, maintaining, shipping or display.
(vii) The person, for a minimum of one (1) year after meeting the standards established under this subsection, shall notify the Department at plant@pa.gov of all shipments of Buxus (sp.) prior to shipment of the plant material to its destination.
11. Dealer, wholesale or retail nursery or other facility. A dealer, wholesale nursery or facility, retail nursery or facility or other facility that does not produce Buxus (sp.) material and has been found positive for Box Tree Moth, Cydalima perspectalis, shall do the following:
(a) Enter into a Clean Boxwood Program for non-producers with the Department.
(b) Notify the Department of all incoming Buxus (sp.). prior to receipt of the plant material for a minimum of one (1) year at plant@pa.gov.
12. Criminal and Civil Penalties. In accordance with the provisions of Sections 258.23 and 258.24 of the Act (3 P.S. §§ 258.23 and 258.24), a person who violates this Order of Quarantine may face summary criminal prosecution carrying up to 90 days imprisonment and a fine of up to $300 with respect to each violation. In addition, a person who violates this Order of Quarantine may be assessed a civil penalty of up to $20,000 with respect to each violation.
13. Cooperation with other agencies. As authorized by Section 258.26 of the Act (3 P.S. § 258.26), the Department may cooperate and enter into agreements with any individual, organization or Federal, State or county agency for the purpose of implementing the provisions of the Act. This may include cooperation with respect to the most efficacious measures to survey for and detect Box Tree Moth, Cydalima perspectalis, to slow the spread or eradicate these plant pests.
RUSSELL REDDING,
Secretary
[Pa.B. Doc. No. 24-985. Filed for public inspection July 12, 2024, 9:00 a.m.]
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