[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Proposed Rules]
[Pages 71736-71744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27139]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 /
Proposed Rules
[[Page 71736]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 03-069-1]
RIN 0579-AB85
Nursery Stock Regulations
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Advance notice of proposed rulemaking and request for comments.
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SUMMARY: We are soliciting public comment on whether and how we should
amend the regulations that govern the importation of nursery stock,
also known as plants for planting. Under the current regulations, all
plants for planting are allowed to enter the United States if they are
accompanied by a phytosanitary certificate and if they are inspected
and found to be free of plant pests, unless their importation is
specifically prohibited or further restricted by the regulations. We
are considering several possible changes to this approach, including
establishing a category in the regulations for plants for planting that
would be excluded from importation pending risk evaluation and
approval; developing ongoing programs to reduce the risk of entry and
establishment of quarantine pests via imported plants for planting;
combining existing regulations governing the importation of plants for
planting into one subpart; and reevaluating the risks posed by
importation of plants for planting whose importation is currently
prohibited. We are also considering how to best collect data on current
imports of plants for planting so we can accurately ascertain the
volume, type, and origin of such plants entering the United States. We
are soliciting public comment on these issues to help us determine what
changes we should propose to improve our regulations and which of these
changes should be assigned the highest priority for implementation.
DATES: We will consider all comments that we receive on or before March
10, 2005.
ADDRESSES: You may submit comments by any of the following methods:
EDOCKET: Go to http://www.epa.gov/feddocket to submit or
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once you have entered
EDOCKET, click on the ``View Open APHIS Dockets'' link to locate this
document.
Postal Mail/Commercial Delivery: Please send four copies
of your comment (an original and three copies) to Docket No. 03-069-1,
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your
comment refers to Docket No. 03-069-1.
E-mail: Address your comment to
[email protected]. Your comment must be contained in the body
of your message; do not send attached files. Please include your name
and address in your message and ``Docket No. 03-069-1'' on the subject
line.
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this
docket and submitting comments.
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: You may view APHIS documents published in the
Federal Register and related information, including the names of groups
and individuals who have commented on APHIS dockets, on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
FOR FURTHER INFORMATION CONTACT: Dr. Arnold T. Tschanz, Senior Staff
Officer, Regulatory Coordination, PPQ, APHIS, 4700 River Road Unit 141,
Riverdale, MD 20737-1236; (301) 734-5306.
SUPPLEMENTARY INFORMATION:
Background
Scope and Approach of the Current Regulations
Under the Plant Protection Act (7 U.S.C. 7701-7772), plant pest is
defined as: ``Any living stage of any of the following that can
directly or indirectly injure, cause damage to, or cause disease in any
plant or plant product: A protozoan, a nonhuman animal, a parasitic
plant, a bacterium, a fungus, a virus or viroid, an infectious agent or
other pathogen, or any article similar to or allied with any of the
these articles.'' The Plant Protection Act defines noxious weed as:
``Any plant or plant product that can directly or indirectly injure or
cause damage to crops (including nursery stock or plant products),
livestock, poultry, or other interests of agriculture, irrigation,
navigation, the natural resources of the United States, the public
health, or the environment.'' Under the Plant Protection Act, the
Secretary of Agriculture is authorized to undertake such actions as may
be necessary to prevent the introduction and spread of plant pests and
noxious weeds within the United States. The Secretary has delegated
this responsibility to the Administrator of the Animal and Plant Health
Inspection Service (APHIS).
The regulations in 7 CFR part 319 prohibit or restrict the
importation of certain plants and plant products into the United States
to prevent the introduction or spread of plant pests and noxious weeds.
The regulations contained in ``Subpart--Nursery Stock, Plants, Roots,
Bulbs, Seeds, and Other Plant Products,'' Sec. Sec. 319.37 through
319.37-14 (referred to below as the regulations), restrict, among other
things, the importation of living plants, plant parts, seeds, and plant
cuttings for or capable of propagation. (The regulations in 7 CFR part
360, ``Noxious Weed Regulations,'' contain restrictions on the movement
of noxious weed plants or plant products listed in that part into or
through the United States and interstate; the importation of some
plants and seeds is subject to both the nursery stock regulations and
the noxious weed regulations.) To refer to the articles subject to the
nursery stock regulations collectively in this document, we will use
the term plants for planting, which the International
[[Page 71737]]
Plant Protection Convention defines as: ``Living plants and parts
thereof, including seeds and germplasm, intended to remain planted, to
be planted, or to be replanted to ensure their subsequent growth,
reproduction or propagation.'' This definition matches the scope of the
articles subject to the nursery stock regulations.
APHIS' nursery stock regulations prohibit or restrict the
importation of certain taxa of plants for planting that pose a risk of
introducing plant pests of quarantine concern (referred to below as
quarantine pests) into the United States. We use the word taxon
(plural: taxa) in this document to refer to any grouping within
botanical nomenclature, such as family, genus, species, or cultivar. A
quarantine pest is defined by the International Plant Protection
Convention as: ``A pest of potential economic importance to the area
endangered thereby and not yet present there, or present but not widely
distributed and being officially controlled.'' (In this definition,
pest includes ``any species, strain or biotype of plant, animal or
pathogenic agent injurious to plants or plant products.'')
Plants for planting that APHIS has determined cannot be feasibly
inspected, treated, or handled to prevent quarantine pests that may
accompany them from being introduced into the United States are listed
in the regulations as prohibited articles. Prohibited articles may not
be imported into the United States, unless imported by the U.S.
Department of Agriculture (USDA) for experimental or scientific
purposes under specified safeguards.
Plants for planting that APHIS has determined can be inspected,
treated, or handled to prevent quarantine pests that may accompany them
from being introduced into the United States are listed in the
regulations as restricted articles. Restricted articles may be imported
into the United States if they are imported in compliance with
conditions that may include permit and phytosanitary certificate
requirements, inspection, treatment, postentry quarantine, or
combinations of these safeguards.
Finally, under the regulations in Sec. 319.37-14(a), plants for
planting that are required to be imported under a written permit under
Sec. 319.37-3(a)(1) through (a)(6) may be imported or offered for
importation only at a Federal plant inspection station. Such stations
are designated by asterisks in the list of ports of entry in Sec.
319.37-14(b). Plants for planting offered for importation at a Federal
plant inspection station are inspected and, if necessary, treated
before being allowed entry into the United States. All other plants for
planting whose importation is restricted by the regulations must be
presented for inspection and may be inspected and treated, if
necessary, at any of the ports listed in Sec. 319.37-14(b) or, in
certain limited cases, at another Customs designated port of entry.
The importation of plants for planting is further restricted or
prohibited if there is specific evidence that such importation could
introduce a quarantine pest into the United States. If we have reason
to believe that the importation of a currently admissible taxon of
plants for planting may pose a risk of introducing a quarantine pest, a
pest risk assessment (PRA) is completed to examine the available
evidence on the subject; if the PRA indicates that the risk posed by
the importation of the taxon warrants restrictions on or the
prohibition of its importation, we undertake rulemaking to amend the
regulations to impose the necessary restrictions or prohibition.
We estimate that plants for planting from representative species of
more than 2,000 genera are being imported or have been imported in the
past. Most of the taxa of plants for planting currently being imported
have not been thoroughly studied to determine whether their importation
presents a risk of introducing a quarantine pest into the United
States. We typically rely on inspection at a Federal plant inspection
station or port of entry to mitigate the risks of pest introduction
associated with the importation of these taxa.
Conditions of Importation When the Regulations Were Established
When the regulations were originally established, we believed that
most taxa of plants for planting could be imported safely without such
thorough study, as the volume and types of plants for planting that
were imported and the phytosanitary conditions of their importation
were significantly different than they are today. Typically, the
permits we issued for the importation of plants for planting limited
such importation to either seed or, for cultivars that could not be
propagated by seed, small amounts of plant material (usually 100 or
fewer plants). The intent was to limit the number of plants for
planting imported to the minimum necessary to establish a specific
species or cultivar within the United States. The plants for planting
that were then imported were thus not intended for immediate sale to
U.S. consumers; these imported species or cultivars were only sold to
U.S. consumers after they had been established and propagated for sale
within the United States. As such, importation of living plant material
was limited to species or cultivars that were not grown in the United
States and would not breed true from seed or were difficult to
establish from seed. Thus, both the quantity of living plant material
and the number of types of plants for planting that were imported into
the United States were originally very limited.
In addition, when the regulations were originally established, all
plants for planting that were imported into the United States were
required to be fumigated with methyl bromide or otherwise treated for
insect pests as a condition of entry. Fumigation with methyl bromide
often has a severe adverse effect on plants for planting in
consignments offered for importation into the United States; however,
since the plants for planting were being imported to establish specific
species or cultivars, the adverse effects were not a concern as long as
enough plants for planting survived the treatment to allow for such
establishment. Treatment was mandatory and was performed regardless of
whether there was evidence that the plants for planting offered for
importation could serve as a pathway for the introduction of a
quarantine arthropod pest. Because these pests were eliminated by
fumigation, the regulations were mainly intended to prevent the
introduction of pathogens that fumigation could not control and that
were associated with imported plants for planting. When it was
determined that the entry of a certain taxon of plants for planting
could introduce a pathogen into the United States, regulations were
established that prohibited the entry of that taxon, as listed in Sec.
319.37-2, or prescribed specific phytosanitary mitigation conditions,
as specified in the regulations in Sec. Sec. 319.37-3 through 319.37-8
or in departmental permit conditions, that would eliminate the pathogen
or allow APHIS inspectors to determine that it was not present in the
plants for planting offered for importation. These circumstances
prevailed from the first years after the regulations were established
until the 1970s.
Problems for the Regulations Posed by Recent Trends in the Importation
of Plants for Planting
While allowing the importation of most taxa of plants for planting
with few restrictions may have been a reasonable course of action when
the regulations were established, the circumstances of the importation
of plants for planting have since changed greatly. APHIS no
[[Page 71738]]
longer limits the number of plants for planting that may be imported to
the amount necessary to establish a species or cultivar in the United
States, primarily due to industry requests to import large amounts of
commercial plants for planting for immediate sale to U.S. consumers
rather than for further cultivation within the United States. (As
mentioned above, limits on the number of plants for planting had been
imposed through the permitting process rather than through the
regulations governing the importation of plants for planting.) Since
this change was made, importation of plants for planting has steadily
increased, as producers have found that many plants for planting can be
grown in other countries under more favorable conditions than those
available in the United States. In addition, many importers have found
that there is a large domestic market for new and rare taxa of plants
for planting, further driving increases in the number of taxa imported,
the number of foreign areas from which plants for planting are
imported, and the overall volume of imported plants for planting.
These increases are reflected in all the data available to us. For
example, the Federal plant inspection station at Miami International
Airport handles about 76 percent of all plants for planting that are
offered for importation into the United States. Between fiscal year
1995 and fiscal year 2002, the total number of plant shipments imported
through that inspection station almost doubled, the number of plants
imported through that inspection station increased by 250 percent, and
the number of quarantine pests found in those shipments increased by
275 percent. While, as noted above, importation of plants for planting
was at one time limited to 100 articles of any given taxon, over 1
million apple rootstocks per year were imported through various ports
of entry into the State of Washington alone in the early 1990s. The
overall volume of imports of field crop, grass, and garden seed for
sowing has doubled between 1995 and 2002, to 332,538 metric tons.\1\
The recent increases in the volume of imports of plants for planting
have been dramatic.
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\1\ More information on the volume of imports of seed and other
plants for planting can be found in the Foreign Agricultural
Service's U.S. Trade Internet System at http://www.fas.usda.gov/ustrade.
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In part due to the fact that plants for planting are now imported
for immediate sale to U.S. consumers, imported plants for planting are
no longer routinely fumigated with methyl bromide or otherwise treated
as a condition of entry; as noted previously in this document, the
adverse effects resulting from the fumigation of plants for planting
with methyl bromide are quite severe, which means that importing plants
for planting for immediate sale to U.S. consumers would be impractical
if fumigation were required. We will not resume routine fumigation.
Under the Montreal Protocol and Subchapter VI of the Clean Air Act (42
U.S.C. 7671-7671p), the United States is obligated to minimize its use
of substances such as methyl bromide that deplete stratospheric ozone.
In addition, Article 2 of the World Trade Organization Agreement on the
Application of Sanitary and Phytosanitary Measures requires that any
restrictions APHIS imposes on the importation of plants for plants be
based on scientific principles and is not maintained without sufficient
scientific evidence; as mentioned previously, routine fumigation was
conducted regardless of whether there was evidence that the plants for
planting offered for importation could serve as a pathway for the
introduction of a quarantine pest.
As noted previously, the only remaining restriction on the
importation of most shipments of plants for planting is that they must
enter the United States through a Federal plant inspection station, at
which the plants for planting are randomly sampled and visually
inspected for quarantine pests. However, this inspection may not always
provide an adequate level of protection against quarantine pests,
particularly if the pest is rare, small in size, borne within the
plant, an asymptomatic plant pathogen, or not yet recognized and
regulated as a quarantine pest.
Appropriately mitigating the risks of quarantine pest introduction
associated with the importation of plants for planting is especially
important because quarantine pests introduced via imported plants for
planting are much more likely to become established than quarantine
pests introduced via other imported articles, such as fruits and
vegetables. The introduced plants for planting themselves may serve as
hosts for quarantine pests for months or years, while the shelf life of
most fruits and vegetables is days or weeks. In addition, the
destinations of imported plants for planting, such as plant nurseries,
farms, greenhouses, orchards, and gardens, are likely to be favorable
environments for plant growth and pest development in general, which
could present problems in the event that a taxon of imported plants for
planting turns out to be a carrier of a pathogen or pest or is itself
an invasive plant warranting further consideration as a noxious weed.
Other host material for quarantine pests is also usually abundant in
the environment surrounding imported plants for planting. Under these
circumstances, the introduction of even a few individuals of a
quarantine pest via imported plants for planting may lead to the
establishment of that pest in the United States.
In addition, concern has grown in recent years among national plant
protection organizations (NPPOs), State plant protection organizations,
and members of the plants for planting industry and the scientific
community that there may be many little-known quarantine pests that
could be introduced into the United States via the importation of
plants for planting or by other articles. In many countries, research
capabilities are limited due to a shortage of funds for research as
well as a shortage of trained weed scientists, entomologists, plant
pathologists, and nematologists. Given this shortage, NPPOs in these
countries are likely to concentrate their limited research capabilities
on studying crops of local economic importance. Such crops are mostly
agronomic crops and fruits and vegetables grown for domestic
consumption or export; non-agronomic or ornamental plants are less
likely to be studied for possible pest risks. Therefore, quarantine
pests of plants for planting in these countries are generally not well
known. If research is done on potential pests, it may not be readily
available to the international community. Resources in many countries,
particularly developing countries, may also be concentrated on locally
serious pest problems that may not be of quarantine concern to the
United States; conversely, pests that would be of concern to us if they
were to be introduced via the importation of plants for planting may
not be considered a significant problem in other countries. In
addition, pests that may not have serious consequences in one
environment may pose great risks in another, and the conditions that
increase the risk posed by pests can be difficult to predict.
Recommendations of the Safeguarding Report With Regard to Plants for
Planting
The National Plant Board's 1999 ``Safeguarding American Plant
Resources'' report \2\ (referred to below as
[[Page 71739]]
the Safeguarding Report) contrasted the approach of the regulations
governing the importation of plants for planting with the approach of
the regulations governing the importation of fruits and vegetables,
which are found in ``Subpart--Fruits and Vegetables'' (Sec. Sec.
319.56 through 319.56-8) within 7 CFR part 319. While quarantine pests
that enter the United States via imported fruits and vegetables are
less likely to become established than quarantine pests that enter the
United States via imported plants for planting, many of the other
problems associated with the importation of plants for planting, such
as a lack of research or information concerning the plant pests that
may be associated with an article, can be an issue in the importation
of fruits and vegetables as well.
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\2\ ``Safeguarding American Plant Resources: A Stakeholder
Review of the APHIS-PPQ Safeguarding System,'' National Plant Board.
July 1999. Text available at http://www.aphis.usda.gov/ppq/safeguarding/.
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However, the importation of fruits and vegetables is generally
prohibited under the regulations in ``Subpart--Fruits and Vegetables,''
and the importation of a fruit or vegetable is only allowed if
sufficient information is available to prove that its importation is
safe. The process of allowing the importation of a fruit or vegetable
from a particular area or country begins when APHIS receives an import
request from an importer or an exporting country or when there is a
request to reconsider the entry status of a commodity previously denied
entry. If the request is for a fruit or vegetable for which no previous
entry decision has been made, or if new evidence indicates that the
previous entry decision may no longer be applicable, then a PRA is
performed to determine the sources of pest risk associated with the
requested importation. The fruit or vegetable is only allowed to be
imported if the PRA indicates that the risk can be effectively
mitigated and if notice-and-comment rulemaking to allow the importation
is successfully completed. In other words, all commodities whose
importation is governed by ``Subpart--Fruits and Vegetables'' are
prohibited from importation pending risk evaluation and approval.
By contrast, as described above, the nursery stock regulations do
not require that a PRA be completed prior to the importation of a new
taxon of plants for planting or prior to the taxon's importation from a
new area; most plants for planting are allowed to be imported after
visual inspection at a Federal plant inspection station or port of
entry. APHIS can take administrative action to prohibit or restrict the
entry or subsequent interstate movement of a taxon of plants for
planting under the Plant Protection Act if it poses an immediate danger
of introducing or spreading a plant pest or noxious weed in the United
States; in such an emergency situation, rulemaking may be completed
after the prohibition or restrictions are imposed. However, in routine
situations, the entry of a taxon of plants for planting is only
prohibited or restricted after a PRA and subsequent notice-and-comment
rulemaking are completed. This difference between the regulatory
approaches for plants for planting and for fruits and vegetables means
that the risks associated with the importation of specific taxa of
plants for planting are generally much less well known than the risks
associated with the importation of taxa of fruits and vegetables under
the regulations in 7 CFR part 319.
As the Safeguarding Report states, the regulations' current
approach to restricting the importation of plants for planting ``is
based solely on known pest and disease problems of the plants on the
established lists [of prohibited and restricted articles]. Everything
is admissible unless specifically listed as restricted or prohibited.
This assumes there is no risk associated with the unknown, an alarming
assumption given the resources at stake and the quality of information
available.'' It can be assumed that some taxa of plants for planting
that are presently being imported pose risks of introducing quarantine
pests that are currently unknown to us; as the Safeguarding Report
states, ``new species of plant that have not been subjected to risk
assessment can enter channels of trade with no regulation. Since these
are not listed, they are by default admissible and subject to the least
stringent protocol regardless of their potential to carry pests or
diseases, or become invasive themselves.''
As the importation of plants for planting has increased
dramatically over the last decade, there has not been a commensurate
increase in available resources to determine the number and
distribution of pests that could be introduced via imported plants for
planting, to initiate PRAs, and, when necessary, to amend the
regulations to address risks presented by quarantine pests and noxious
weeds after their importation. A significant number of pests that could
be introduced to the United States via imports of plants for planting
need to be evaluated for quarantine significance, but their evaluation
has been delayed by this lack of resources. Although we have been able
to initiate rulemaking to mitigate risks posed by certain exotic pests,
in general our ability to quickly apply new scientific research and
information has been hampered by this lack of resources.
These conditions are believed to have led to several pest
introductions in recent years. For example, articles of Pelargonium
spp. that were contaminated with Ralstonia solanacearum race 3 biovar
2, a bacterium that is listed in our regulations in 7 CFR 331.3(a) as
an agent capable of posing a severe threat to plant health or plant
products, have been imported into the United States multiple times,
most recently in February 2003. In the February 2003 outbreak,
contaminated articles of Pelargonium spp. were imported from both
Guatemala and, subsequently, Kenya. The articles were required to be
inspected at the port of entry, but at the time of their importation
they may not have been showing symptoms of the wilt disease that R.
solanacearum race 3 biovar 2 causes in geraniums. The bacterium was
eradicated in greenhouse plants before it could become established in
the U.S. environment, where it could have severely affected the U.S.
potato crop; more than 2.1 million plants at 471 greenhouses throughout
the United States were destroyed as part of the eradication effort. The
eradication effort was costly to APHIS, State plant health authorities,
and the U.S. plants for planting industry. In response to this
outbreak, we amended the regulations by establishing requirements at
Sec. 319.37-5(r) for the importation of articles of Pelargonium spp.
and Solanum spp., two hosts of the bacterium. However, it would have
been preferable to establish regulations, including conditions of
entry, that would have allowed us to avoid the outbreak entirely.
The factors described above led the National Plant Board to
recommend in the Safeguarding Report that the plants for planting
regulations be revised to better protect U.S. plant resources from
quarantine pests. Specifically, the Safeguarding Report recommended
that APHIS:
Review the plants for planting regulations for conformance
with the Plant Protection Act and adherence to international standards
for quarantine regulations (recommendation E-2);
Develop a strategy of quarantine development tied to pest
risk potential that is reasonable, enforceable, and transparent
(recommendation E-3);
Begin its quarantine revision process with the revision of
the fruits and vegetables and plants for planting quarantine
regulations (recommendation E-4):
Consider adopting a modified ``clean list'' approach for
propagative material, specifying what is permissible subsequent to risk
assessment, rather
[[Page 71740]]
than the current ``dirty list'' approach that prohibits or restricts
specific articles only (recommendation E-46); and
Purge lists of ``phantom diseases,'' like the rose wilt
virus, that are not recognized by the scientific community
(recommendation E-48).
In response to these recommendations, this advance notice of
proposed rulemaking solicits public comment on five measures we are
considering as part of an effort to revise the regulations. We believe
these measures, taken together, would enable APHIS to provide a more
appropriate level of protection against the risk of introduction of
quarantine pests via imported plants for planting than the current
regulations provide. The measures we are considering are: (1)
Collecting data on the current importation of taxa of plants for
planting; (2) establishing a new category for certain taxa of plants
for planting that would be excluded from importation pending risk
evaluation and approval; (3) establishing programs to reduce the risk
of importation and establishment of quarantine pests; (4) combining
existing regulations governing the importation of plants for planting;
and (5) reevaluating taxa whose importation is currently prohibited.
These measures are described in more detail below.
Collecting Data on the Current Importation of Taxa of Plants for
Planting
To effectively determine what changes may need to be made to the
regulations and the possible impact of those changes, we must have
accurate and complete data regarding the volume, types, and origin of
plants for planting that are currently being imported into the United
States. We do not currently have such data.
Although the regulations in Sec. 319.37-4 require that all
imported plants for planting must be accompanied by a phytosanitary
certificate, the phytosanitary certificates accompanying these articles
often do not contain the data we would need to evaluate current imports
of plants for planting. Currently, importers are not required to
provide the scientific name or even the genus of the plants for
planting being imported on the phytosanitary certificate, and several
genera may be included in one broad category (such as ``tropical
foliage'') on the certificate, although we anticipate amending the
regulations to require that importers provide genus and species
information. In addition, estimates of the volume of imports derived
from phytosanitary certificates may not be reliable.
The Foreign Agricultural Service (FAS) reports data on imports of
plants for planting into the United States according to certain
categories developed by FAS, and these data are generally considered to
accurately indicate the volume of trade in any given category. However,
the categories FAS uses typically include many genera of plants for
planting, meaning that the FAS data also do not provide the detailed
information about imports of plants for planting that we need.
We are considering what sources to use to acquire data regarding
the volume, types, and origin of plants for planting that are currently
being imported into the United States and how to use those sources.
APHIS records could provide some of the data, although, as noted above,
there are gaps in APHIS' data set. We could ask importers to provide
data on the volume, types, and origin of past and present importations
of plants for planting. Other potential data sources we identified
include professional societies, horticultural groups, trade groups,
businesses, researchers, universities, arboretums, and individuals. We
are also considering making changes to the regulations that would allow
us to more easily obtain such data; for example, we could require that,
for any consignment of plants for planting offered for importation into
the United States, the importer provide or the phytosanitary
certificate include the quantity in which the plants for planting are
being offered.
Once we collect the data, we would analyze the information to
determine what taxa of plants for planting are already being imported
in significant amounts. This would allow us to make better informed
decisions about whatever changes to the regulations may be necessary.
We invite responses to the following questions in particular on the
data collection activities we are considering:
1. Are there any sources other than those listed above from which
we should solicit or obtain data?
2. What should we do to ensure that the data we receive accurately
reflect actual importations of plants for planting?
3. What are the taxa or types of plants for planting for which
obtaining accurate data might be especially difficult?
Establishing a New Category for Certain Taxa of Plants for Planting
That Would Be Excluded From Importation Pending Risk Evaluation and
Approval
As described above under the heading ``Scope and Approach of the
Current Regulations,'' the regulations currently either prohibit the
importation of plants for planting, allow the importation of plants for
planting subject to specific restrictions such as additional
declarations on phytosanitary certificates or postentry quarantine, or
allow the importation of plants for planting subject to general
restrictions such as phytosanitary certificates and inspection at a
Federal plant inspection station or port of entry. We plan to retain
these categories in the regulations for plants for planting. We are
considering adding an additional category for certain taxa of plants
for planting that would be excluded from importation pending risk
evaluation and approval. These taxa would be listed in the regulations
under a heading separate from the prohibited and restricted articles.
A taxon excluded from importation pending risk evaluation and
approval could be removed entirely from the list if a PRA was completed
and the PRA indicated that the taxon could be imported safely. The PRA
would identify any phytosanitary mitigation measures that might be
necessary for plants for planting of the taxon to be imported safely;
we would then amend the regulations through notice-and-comment
rulemaking to require those measures.
While a taxon is excluded from importation pending risk evaluation
and approval, we would allow it to be imported into the United States
if the producer that wishes to export the taxon to the United States is
participating in an approved clean stock program. We would additionally
allow the importation of small quantities of such a taxon under the
conditions of a best management practices program so that it could be
tested within the United States. We would establish a permit system to
allow and control such importation. (The clean stock and best
management practices programs are another measure we are considering to
improve the effectiveness of the regulations. Both programs would be
designed to mitigate the risks posed by all types of plant pests, not
just the specific plant pests a PRA would identify and address. They
are discussed in more detail below under the heading ``Programs To
Reduce the Risk of Importation and Establishment of Quarantine
Pests.'') Thus, under the
[[Page 71741]]
plan we are considering, the exclusion of taxa of plants for planting
listed in this category would not be total, nor would it necessarily be
permanent.
We are considering two possible options for determining which taxa
of plants for planting would be added to this category. In the first
option, taxa of plants for planting that are currently being imported
in significant amounts and whose importation is subject to general
restrictions in the regulations would, in most cases, be presumed to be
safe and would not be excluded from importation pending risk evaluation
and approval. (We would determine which taxa are currently being
imported in significant amounts by analyzing the importation data we
are interested in collecting, as described below under the heading
``Collecting Data on the Current Importation of Taxa of Plants for
Planting.'') All taxa of plants for planting that are not currently
being imported in significant amounts would then be excluded pending
risk evaluation and approval.
This first option would allow the continued importation of taxa of
plants for planting that are being imported in significant amounts
because the risks associated with such taxa are generally better known
than the risks associated with taxa that are being imported in smaller
amounts. In general, the risks associated with taxa of plants for
planting that have not previously been imported into the United States,
in small quantities, or from different areas than those from which they
have previously been imported are the least well-known risks associated
with plants for planting; thus, these are the plants for planting that
we would want to exclude pending risk evaluation and approval. For
example, if a taxon is being imported in significant amounts, it is
more likely that some study of its potential risks has been undertaken
in either the exporting country or the United States. In addition,
inspectors have more experience with taxa of plants for planting that
are being imported in significant amounts, and thus can better
recognize potential risks associated with such plants for planting than
may be possible with taxa that are being imported in smaller amounts.
If other evidence, such as a PRA or evidence required by the second
option that is described below, indicated that a taxon of plants for
planting that was currently being imported in significant amounts could
introduce a quarantine pest, we would reserve the right to restrict or
prohibit its importation, perhaps by excluding it pending risk
evaluation and approval.
In accordance with the above information, with regard to this
option, we are considering whether to treat a taxon of plants for
planting that is being imported in significant quantities from one area
but is not being imported in significant quantities from another area
as two separate taxa for the purposes of exclusion pending risk
evaluation and approval. For example, a taxon that is currently being
imported in significant quantities from Africa but has never been
imported from Asia may pose different pest risks when it is imported
from the new area and therefore could be excluded pending risk
evaluation and approval.
However, the first option has some potential problems. If this
option were implemented without also increasing the resources available
to us for conducting and completing PRAs, the volume of requests for
importation of new taxa of plants for planting would likely overwhelm
our ability to evaluate the new taxa for possible risk in a timely
manner. In addition, since we do not currently have detailed data on
what taxa of plants for planting are being imported into the United
States, implementation of this approach would take some time.
In the second option that we are considering, we would exclude taxa
of plants for planting from importation pending risk evaluation and
approval when evidence other than a PRA was available that indicated
either that the importation of the plant could introduce a quarantine
pest into the United States or that the plant itself could be a
quarantine pest or a noxious weed. Evidence used in such an evaluation
would be drawn from sources such as scientific literature, government
reports, professional organizations, and international databases. We
would publish criteria regarding the sources of information that could
be used and the volume of evidence that would be necessary to exclude a
taxon. We anticipate that most taxa of plants presently being imported
in significant amounts would continue to be allowed to be imported
under the second option, although, for reasons discussed above under
the heading ``Collecting Data on the Current Importation of Taxa of
Plants for Planting,'' we lack the data to make a definite prediction
on this subject.
Although under this option, taxa of plants for planting would be
added to this category through notice-and-comment rulemaking, removing
the obligation to complete a PRA before such rulemaking could be
initiated would allow us to respond more quickly when other evidence
indicates that the importation of certain taxa of plants for planting
could pose a risk of introducing quarantine pests into the United
States. Because it would require fewer resources to exclude a taxon
pending risk evaluation and approval under this option than conducting
a PRA in order to prohibit or restrict a taxon's importation does under
the current regulations, the second option could be implemented with
the resources presently available; however, it would be more effective
if additional resources were available to search for and evaluate
available information.
The two options for adding taxa of plants for planting to the
category of excluded pending risk evaluation and approval could be
combined to some extent. If the options were combined and implemented,
taxa of plants for planting that are currently being imported in
significant quantities but whose importation poses an uncertain risk of
introducing quarantine pests into the United States could still be
excluded from importation pending risk evaluation and approval if
evidence other than a PRA supported such an exclusion. For example, a
taxon that is currently being imported but which an importer wishes to
import from a different area than the area from which it is currently
being imported could be placed in the category of excluded pending risk
evaluation and approval if we had evidence that a quarantine pest
existed in the new area.
We invite responses to the following questions in particular on the
``excluded pending risk evaluation and approval'' category we are
considering:
1. How would each of the two options for adding taxa of plants for
planting to this category affect the sectors of the horticultural
industry that propagate and sell imported plants for planting? Which
option would disrupt current trade in plants for planting the least?
2. If the first option were implemented, what should constitute a
``significant'' amount for taxa of plants for planting that are already
being imported?
3. If the second option were implemented, what sources of
information and what minimum criteria should be used to determine
whether a specific taxon should be excluded pending risk evaluation and
approval?
4. Should taxa of plants for planting imported from different
regions be considered separate regulated articles for the purposes of
this category? For example, if a taxon is currently being imported in
significant quantities from Africa but has never been imported from
Asia, should imports of this taxon from
[[Page 71742]]
Asia be excluded pending risk evaluation and approval?
Programs To Reduce the Risk of Importation and Establishment of
Quarantine Pests
The regulations currently contain a few programs that prescribe
procedures for growing establishments in foreign countries that wish to
export plants for planting to the United States. For example, Sec.
319.37-4(c) describes a voluntary program for greenhouse-grown plants
from Canada that includes requirements for identification of exported
plants, recordkeeping, shipping, and pest management practices; if
growers in Canada participate in this program, their plants may be
offered for importation into the United States without a phytosanitary
certificate. Under Sec. 319.37-5(b), to prevent the introduction of
certain pathogens of fruit trees into the United States, exporters of
various plants for planting in Belgium, Canada, Germany, France, Great
Britain, or the Netherlands must present phytosanitary certificates
with an additional declaration that the NPPO of the exporting country
had examined the stock from which the plants for planting have been
derived and found the stock to be free of the pathogens of concern.
True seed (botanical seed) of Solanum tuberosum imported from Chile
under Sec. 319.37-5(o) must be sampled by the NPPO of that country and
tested for various diseases before being exported; growers must also
agree to undertake various pest management and exclusion practices to
be eligible to export Solanum tuberosum true seed into the United
States. Certain plants for planting may be imported in growing media if
they meet the conditions in Sec. 319.37-8(e), which include a
mandatory compliance agreement, greenhouse phytosanitary standards,
growing requirements, and, for some articles, treatment and inspection
requirements. These programs have all been effective at excluding
quarantine pests from shipments of these articles that are imported
into the United States.
We are considering establishing similar programs that exporters
would have to participate in if they wished to export certain plants
for planting to the United States. Participants in these programs would
follow practices that would be designed to mitigate the risks posed by
all pests, whether known or unknown to APHIS, that could be introduced
into the United States via imported plants for planting. These programs
would be broadly divided into two types. Clean stock programs would
establish procedures for foreign exporters to ensure through testing
that the stock from which plants for planting are derived is free of
disease and to exclude pests from the growing environment of these
plants for planting. Best management practices programs would allow
U.S. importers to establish methods of excluding quarantine pests from
plants for planting that importers test for propagation or propagate
within the United States and prevent the establishment of those pests
in the United States, or, if the plants for planting themselves appear
to be potential noxious weeds, to prevent their establishment in the
United States. The regulations in Sec. 319.37-5(b) are an example of a
clean stock program; the Draft Voluntary Codes of Conduct developed as
part of the Saint Louis Declaration, a product of the Workshop on
Linking Ecology and Horticulture to Prevent Plant Invasion held in St.
Louis, Missouri, in December 2001, are collectively an example of a
best management practices program.\3\
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\3\ See http://www.fleppc.org/FNGA/St.Louis.htm for more
information on the Workshop and text of the Draft Voluntary Codes of
Conduct.
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Clean stock programs could be established in countries that wish to
export plants for planting to the United States. Many clean stock-type
programs already exist in the nursery and floriculture industry; some
have been established independently by industry, while others are based
on regulatory requirements. In general, the clean stock programs we
envision would have several basic elements:
Production facilities would generate plants for planting
from propagative material that is free or nearly free of pests.
Production facilities would have an International
Organization for Standardization-like set of standard operating
procedures that include adequate pest control, regular inspection and
testing, and detailed recordkeeping of all aspects of plant production,
including the origin of plants for planting that are eventually
exported so that they may be traced back if necessary.\4\
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\4\ The International Organization for Standardization develops
and codifies standard production methods and quality control
procedures (such as the ISO 9000 standards) for a variety of
industries.
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The NPPO of the country in which the production facility
is located would have oversight over the production facility and
perform regular audits to ensure that all elements of the production
system were in compliance with program standards.
APHIS would have the ability to perform on-site audits of
the production system as well. APHIS would also perform audits upon
importation to ensure that these plants for planting meet the approved
standards for the clean stock program. Because these programs would be
designed to exclude all pests, the presence of non-quarantine pests
above established tolerance levels could be used as an indication of
program failure. Such audits could take the form of inspections or
laboratory testing.
Penalties and remedial action would be required in the
case of noncompliance. Shipments of plants for planting exported under
a clean stock program would be held or rejected if an audit revealed
that the plants for planting were not grown in compliance with the
clean stock program.
These general standards, if adequately developed, could be used as
a template to develop specific regulatory approaches. For example, the
regulations in Sec. 319.37-5(r)(3) that govern the importation of
articles of Pelargonium spp. and Solanum spp. from countries where R.
solanacearum race 3 biovar 2 is known to occur were developed after we
had drafted these general guidelines; collectively, the requirements in
that paragraph satisfy the basic elements listed above. We believe
that, had a clean stock program been in place for the importation of
articles of Pelargonium spp., it would have excluded R. solanacearum
race 3 biovar 2 from articles of Pelargonium spp. imported into the
United States.
While the clean stock programs would allow exporters to address
pest risk before plants for planting are offered for importation into
the United States, the best management practices programs would be
established so that U.S. entities could detect and eliminate quarantine
pests that may be associated with imported plants for planting and
determine whether an imported plant for planting has the potential to
become a noxious weed. Participants in these programs would be domestic
producers and importers of plants for planting that wish to grow small
amounts of a taxon of plants for planting within the United States to
determine the taxon's biological and commercial viability, in addition
to the risks its importation may pose.
The best management practices programs would be used within the
United States to allow the importation for testing purposes of small
quantities of plants and plant parts from taxa that were excluded from
importation pending risk evaluation and approval, in tandem with the
permit system
[[Page 71743]]
mentioned in the discussion of this possible new category. Following
the best management practices prescribed in these programs would
greatly reduce the risk that any quarantine pest that might escape
detection and enter the United States via the imported plants for
planting would then become established in the United States. In the
case that the plants for planting themselves proved to be noxious
weeds, the best management practices would also reduce the risk that
those plants for planting could become established in the United
States.
The best management practices programs we envision would include
several basic elements, including:
A code of conduct or documented standard operating
procedures that include pest control practices, inspection and testing,
and recordkeeping, similar to that described above in the clean stock
program;
Oversight and audits by a professional organization or a
State agricultural organization to ensure compliance with the agreed-
upon code of conduct or standard operating procedures;
Some form of Federal oversight; and
Penalties and remedial action for noncompliance.
General principles under which these programs would operate and
performance standards these programs would have to achieve would be
specified in the regulations. To develop the clean stock programs,
APHIS would consult with the NPPOs of exporting countries to develop
workplans that would specify how these principles and standards would
be achieved in local conditions for each country or for areas within
countries. The NPPO would share with APHIS responsibility for ensuring
that participants in the programs comply with the requirements of the
program. To develop the best management practices program, APHIS could
cooperate with professional organizations or work directly with
importers.
Penalties for not complying with the requirements of the programs
would be imposed in a graded manner, to encourage compliance. Penalties
would ultimately include suspension or removal from the program.
Facilities, exporters, importers, and countries could all ultimately be
removed from the programs if major or repeated violations of program
requirements occurred.
Participants would have a continuing incentive to satisfy the
requirements of the programs, as the importation of certain plants for
planting would be contingent on satisfying the programs' requirements.
For example, taxa of plants for planting that would be excluded from
importation pending risk evaluation and approval could be imported if
they were exported by producers that participated in a clean stock
program or were imported by participants in a best practices program;
plants for planting exported by producers in full compliance with the
requirements of a clean stock program would likely be free of both
pathogens and insect pests upon importation into the United States,
while domestic firms participating in a best practices program would
minimize the risk that any pathogens or insect pests that might still
be present would be introduced into the United States. In addition, it
is possible that we could allow importation of plants for planting from
countries in which certain pathogens or other pests are prevalent if
the specific facility that wished to export such plants for planting
participated in a clean stock program.
We invite responses to the following questions in particular on the
clean stock programs we are considering:
1. Is it feasible to use this type of program in producing large
volumes of taxa of plants for planting other than those that are
currently exported to the United States under the programs in our
regulations? What additional costs might be associated with growing
other taxa of plants for planting under this type of program? What
benefits might be associated with implementing such a program?
2. What specific aspects of these programs could prove problematic
or would require detailed attention?
3. How could a clean stock program be designed to ensure that
quarantine pests are not inadvertently brought to the United States
along with plants for planting?
4. Are there any foreign clean stock programs not mentioned in our
regulations that could serve as models for a general clean stock
program?
We invite responses to the following questions in particular on the
best management practices program we are considering:
1. As noted above, draft codes of conduct that could form the core
of a best management practices program already exist. Are these codes a
feasible starting point from which to develop a best management
practices program?
2. Do other applicable best management practices programs exist?
Which of these is the best one, and why? What additional costs might be
associated with growing plants for planting under this type of program?
What benefits might be associated with implementing such a program?
3. What existing industry practices should be incorporated into
this program?
4. What permit conditions would help to reduce the risk that
quarantine pests associated with plants for planting imported in
limited quantities for testing could become established, or that the
plants for planting themselves, if the taxon proves to be invasive,
could become established?
5. What would be the best way to identify and assess any
environmental risks that might be associated with the importation of
plants for planting under a best management practices program?
Combining Existing Regulations Governing the Importation of Plants for
Planting
As described above, the nursery stock regulations restrict, among
other things, the importation of living plants, plant parts, seeds, and
plant cuttings for planting or propagation. Other subparts in 7 CFR
part 319 also contain regulations restricting, among other things, the
importation of plants for planting. These subparts address the risks
associated with the importation of specific articles or the prevention
of the introduction and establishment of specific diseases, as opposed
to the more general scope of the nursery stock regulations. Subparts
containing such restrictions include ``Subpart--Foreign Cotton and
Covers'' (Sec. Sec. 319.8 through 319.8-26), ``Subpart--Sugarcane''
(Sec. Sec. 319.15 and 319.15a), ``Subpart--Citrus Canker'' (Sec.
319.19), ``Subpart--Corn Diseases'' (Sec. Sec. 319.24 through 319.24-
5), ``Subpart--Indian Corn or Maize, Broomcorn, and Related Plants''
(Sec. Sec. 319.41 through 319.41-6), ``Subpart--Rice'' (Sec. Sec.
319.55 through 319.55-7), ``Subpart--Wheat'' (Sec. Sec. 319.59 through
319.59-2), and ``Subpart--Coffee'' (Sec. Sec. 319.73-1 through 319.73-
4). In addition, the regulations in 7 CFR part 361, ``Importation of
Seed and Screenings Under the Federal Seed Act,'' requires shipments of
imported agricultural and vegetable seeds to be labeled correctly and
to be tested for the presence of seeds of certain noxious weed seeds as
a condition of entry into the United States, while the regulations in 7
CFR part 360, ``Noxious Weed Regulations,'' contain restrictions on the
movement of noxious weed plants and plant parts listed in that part
into or through the United States and interstate.
We are considering whether to incorporate all the regulations
regarding the importation of plants for planting into a single subpart.
We would change the name of this subpart from ``Subpart--Nursery Stock,
Plants, Roots, Bulbs, Seeds, and Other Plant Products''
[[Page 71744]]
to ``Subpart--Plants for Planting'' to reflect this change. We would
also include the weed taxa whose importation is restricted by 7 CFR
part 360 as restricted articles in the new plants for planting
regulations. Our intent in making such a change would be to improve the
clarity and transparency of our regulations governing the importation
of plants for planting by allowing users of the regulations to find all
these regulations in one subpart. By making it easier for users of the
regulations to find and follow the regulations relevant to their
situation, this action could also improve compliance.
We invite responses to the following questions in particular on the
reorganization of the regulations for plants for planting we are
considering:
1. Should all the regulations governing the importation of plants
for planting in the subparts listed above be incorporated into one
subpart? If not, which subparts should be excluded, and why?
2. If we should incorporate the regulations governing the
importation of plants for planting in the subparts listed above into
one subpart, which subparts should we incorporate first? Should we
combine them all at once?
Reevaluating Taxa Whose Importation Is Currently Prohibited
The regulations in Sec. 319.37-2(a) list taxa whose importation is
prohibited because the importation of plants for planting from these
taxa poses a risk of introducing a quarantine pest into the United
States. Several of the other subparts listed above also prohibit the
importation of certain taxa of plants for planting. Many of these taxa
were prohibited from being imported after the discovery of a single
quarantine pest as found in a shipment offered for importation into the
United States or as reported in the scientific literature. Complete
quarantine pest lists are not available for each of these taxa. In
addition, the regulations in Sec. 319.37-2(b) prohibit the importation
of certain taxa of plants for planting if the plants for planting
exceed certain sizes or ages. These limits have not been reviewed
recently.
In accordance with recommendation E-48 in the Safeguarding Report,
we are considering reviewing the taxa of plants for planting whose
importation is currently prohibited to determine whether the pests of
concern presently qualify as quarantine pests by the definition cited
above. Since the time these plant taxa were designated as prohibited,
the pest of concern may have become established in the United States,
or scientific evidence may have become available that indicates that
the pest of concern does not qualify as a quarantine pest. If we
undertake this review, we will begin by conducting a PRA to determine
the pests of quarantine concern associated with these taxa and whether
prohibition is the only approach to mitigation that would prevent
quarantine pests associated with these taxa of plants for planting from
becoming established in the United States.
We invite responses to the following question on our potential
reevaluation of taxa of plants for planting whose importation is
currently prohibited:
1. Which taxa should be candidates for review? Which of these taxa
should be assigned the highest priority for review? Please identify the
taxa by scientific name and provide scientific information to support
your suggestion. Please also provide information, if known, on any
quarantine pests other than the pest(s) of concern listed in the
regulations that may be associated with the taxa.
2. Which prohibitions on the basis of size or age should be
candidates for review? Which of these prohibitions should be assigned
the highest priority for review?
We further invite comment on which of the five measures above
should be assigned the highest priority for implementation, if any.
Economic Data About the Plants for Planting Industry
Except for combining existing regulations governing the importation
of plants for planting, which would be an administrative change, all
the measures we are considering for revising the regulations would be
likely to have an economic impact on numerous entities considered
``small'' according to the size standards established by the Small
Business Administration (SBA).\5\ After we receive answers to the
specific questions listed above regarding the five measures we are
considering, we may issue a proposal or proposals with the goal of
implementing one or more of these measures. In order to conduct the
economic analysis required by the Regulatory Flexibility Act for those
potential proposals and assess the impact of any changes we might
propose on small entities, we will need more economic data about the
plants for planting industry than are currently available to us.
Therefore, we invite the public to provide us with data regarding the
structure of the plants for planting industry, including the number of
firms in the industry, the number of firms that could be considered
small according to the SBA's size standards, the number of firms whose
business directly involves the importation of plants for planting, and
any other data that would assist us in conducting economic analyses
associated with these measures.
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\5\ A guide to SBA's definitions of small business is available
on the Internet at http://www.sba.gov/size/indexguide.html. A table
of small business size standards matched to the North American
Industry Classification System is available at http://www.sba.gov/size/sizetable2002.html.
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We would also appreciate any suggestions the public may have for
improving other aspects of the regulations to reduce the risk of
introducing quarantine pests into the United States.
Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7
CFR 2.22, 2.80, and 371.3.
Done in Washington, DC, this 6th day of December 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-27139 Filed 12-9-04; 8:45 am]
BILLING CODE 3410-34-P