Federal Register, Volume 76 Issue 103 (Friday, May 27, 2011)

[Federal Register Volume 76, Number 103 (Friday, May 27, 2011)]
[Rules and Regulations]
[Pages 31172-31210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13054]

[[Page 31171]]

Vol. 76

Friday,

No. 103

May 27, 2011

Part III

Department of Agriculture

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Animal and Plant Health Inspection Service

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7 CFR Part 319

Importation of Plants for Planting; Establishing a Category of Plants
for Planting Not Authorized for Importation Pending Pest Risk Analysis;
Final Rule

Federal Register / Vol. 76 , No. 103 / Friday, May 27, 2011 / Rules
and Regulations

[[Page 31172]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2006-0011]
RIN 0579-AC03

Importation of Plants for Planting; Establishing a Category of
Plants for Planting Not Authorized for Importation Pending Pest Risk
Analysis

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations to establish a new category of
regulated articles in the regulations governing the importation of
nursery stock, also known as plants for planting. This category will
list taxa of plants for planting whose importation is not authorized
pending pest risk analysis. If scientific evidence indicates that a
taxon of plants for planting is a quarantine pest or a host of a
quarantine pest, we will publish a notice that will announce our
determination that the taxon is a quarantine pest or a host of a
quarantine pest, cite the scientific evidence we considered in making
this determination, and give the public an opportunity to comment on
our determination. If we receive no comments that change our
determination, the taxon will subsequently be added to the new
category. We will allow any person to petition for a pest risk analysis
to be conducted to consider whether to remove a taxon that has been
added to the new category. After the pest risk analysis is completed,
we will remove the taxon from the category and allow its importation
subject to general requirements, allow its importation subject to
specific restrictions, or prohibit its importation. We will consider
applications for permits to import small quantities of germplasm from
taxa whose importation is not authorized pending pest risk analysis,
for experimental or scientific purposes under controlled conditions.
This new category will allow us to take prompt action on evidence that
the importation of a taxon of plants for planting poses a risk while
continuing to allow for public participation in the process.

DATES: Effective Date: June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Dr. Arnold Tschanz, Senior Plant
Pathologist, Plants for Planting Policy, Risk Management and Plants for
Planting Policy, RPM, PPQ, APHIS, 4700 River Road Unit 133, Riverdale,
MD 20737-1236; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

Under the Plant Protection Act (PPA) (7 U.S.C. 7701 et seq.), the
Secretary of Agriculture is authorized to take 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 of plant pests that are not already
established in the United States or plant pests that may be established
but are under official control to eradicate or contain them within the
United States. The regulations 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 planting or propagation. These
regulations are intended to ensure that imported nursery stock does not
serve as a host for plant pests, such as insects or pathogens, that can
cause damage to U.S. agricultural and environmental resources.
The regulations in 7 CFR part 360, ``Noxious Weed Regulations,''
contain prohibitions and restrictions on the movement of noxious weeds
or plant products listed in that part into or through the United States
and interstate. Plants are designated as noxious weeds when the plants
themselves can cause damage to U.S. agricultural and environmental
resources, meaning they can only be moved under a permit containing
conditions to prevent their introduction into the environment. The
importation of some plants is subject to both the nursery stock
regulations and the noxious weed regulations.
On July 23, 2009, we published in the Federal Register (74 FR
36403-36414, Docket No. APHIS-2006-0011) a proposal \1\ to amend the
nursery stock regulations. We proposed to change the nursery stock
regulations to refer instead to ``plants for planting,'' a term that is
consistent with the International Plant Protection Convention's (IPPC)
Glossary of Phytosanitary Terms.\2\ (In this document, we will use the
term ``plants for planting'' to refer to all the articles subject to
what have been called the nursery stock regulations, as we did in the
proposal.)
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\1\ To view the proposed rule, its supporting documentation, and
the comments we received, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0011.
\2\ The Glossary of Phytosanitary Terms is International
Standard for Phytosanitary Measures (ISPM) Number 5. To view this
and other ISPMs on the Internet, go to http://www.ippc.int/ and
click on the ``Adopted Standards'' link under the ``Core
activities'' heading.
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We proposed to create a new category of plants for planting whose
importation is not authorized pending the completion of a pest risk
analysis. We referred to the category as the ``not authorized pending
pest risk analysis'' (NAPPRA) category. We proposed that the NAPPRA
category would include two lists: A list of taxa that we have judged,
on the basis of scientific evidence, to be potential quarantine pest
plants, and therefore potential noxious weeds; and a list of taxa that
we have judged, on the basis of scientific evidence, to be potential
hosts of quarantine pests.\3\ We proposed to define a quarantine pest
as a plant pest or noxious weed that is of potential economic
importance to the United States and not yet present in the United
States, or present but not widely distributed and being officially
controlled.
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\3\ We use the term ``taxon'' (plural: taxa) to refer to any
grouping within botanical nomenclature, such as family, genus,
species, or cultivar.
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We proposed to add taxa of plants for planting to the NAPPRA
category based on scientific evidence that indicates that their
importation poses a risk of introducing a quarantine pest into the
United States, rather than on a comprehensive pest risk analysis (PRA).
Additionally, we proposed to establish the NAPPRA lists on a Web site
and notify the public of our determination that taxa of plants for
planting are potential quarantine pests or potential hosts of
quarantine pests, and thus should be added to the NAPPRA lists, by
publishing notices in the Federal Register.
Finally, we proposed to allow any person to request that APHIS
conduct a PRA on any plant taxon listed in the NAPPRA category. We
proposed that, after completing the PRA, we would initiate rulemaking
either to allow the importation of the taxon subject to the
restrictions described in the risk management section of the PRA or, if
the risk associated with the importation of the taxon cannot be
feasibly mitigated, to prohibit its importation.

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We also proposed to make several other changes to definitions in
the plants for planting regulations and to expand the scope of the
plants for planting regulations to include nonvascular green plants.
We solicited comments concerning our proposal for 90 days ending
October 21, 2009. We received 256 comments by that date. They were from
producers, researchers, importers, conservation societies,
environmental advocacy groups, representatives of State and foreign
governments, other Federal agencies, and the general public.
Based on these comments, we are making the following changes to the
proposal:
In order to make the regulations more specific and to
avoid confusion, rather than using the terms ``potential quarantine
pest'' and ``potential host of a quarantine pest,'' we are simply
referring to taxa as quarantine pests or hosts of a quarantine pest.
We are clarifying that seed of taxa of plants for planting
whose importation is not authorized pending pest risk analysis is not
eligible to be imported without a phytosanitary certificate under the
small lots of seed program in Sec. 319.37-4(d).
We are not including the proposed provision under which we
would have specified a proposed effective date in the notices
announcing our determination that a taxon should be added to the NAPPRA
category, as we will enforce any restrictions that must be implemented
immediately through Federal import quarantine orders.
We are requiring requests to remove a taxon from the
NAPPRA lists to be made in accordance with Sec. 319.5, which requires
submission of information regarding the taxon by a foreign national
plant protection organizations (NPPO), in order to ensure that we have
enough information to conduct a PRA.
We are providing for the removal of a taxon from the
NAPPRA list if the scientific evidence we used as a basis for adding
the taxon to the lists is shown to be in clear error. We are also
making some minor editorial changes, which are discussed below.
The comments are discussed below by topic.

Support for the Proposed Rule

Two hundred and four of the commenters supported the proposed rule.
They cited various reasons for their support. Many spoke of the damage
that certain plants cause in the natural environment, giving dozens of
examples including mile-a-minute weed, purple loosestrife, yellow
starthistle, leafy spurge, Japanese stilt grass, wavyleaf basketgrass,
water hyacinth, and spotted knapweed.
The commenters stated that many of these plants, as well as many
other harmful plants, have been introduced through the nursery trade,
meaning that they would have been subject to evaluation and,
potentially, prevented from being imported under NAPPRA. One commenter
noted that the nursery trade naturally seeks to sell plants that grow
vigorously, resist insect pests, and propagate easily, traits that are
often associated with plants that harm agricultural and environmental
resources.
Other commenters supported using the NAPPRA category to address the
risk associated with plants for planting that are hosts of quarantine
pests, citing previous introductions of harmful pests through the
importation of plants for planting. These commenters gave many examples
as well, including emerald ash borer, chestnut blight, laurel wilt,
Dutch elm disease, pine pitch canker, dogwood anthracnose, Port Orford
cedar root disease, white pine blister rust, and sudden oak death
(Phytophthora ramorum).
Many commenters who supported the rule cited the costs that State
and local governments and communities must bear in controlling
quarantine pest plants and plant pests; in their view, the most cost-
effective way to avoid additional control costs in the future is to
prevent the importation of damaging quarantine pest plants and plant
pests, and they supported the NAPPRA category as a means by which to do
that. One commenter cited a study showing that the Australian weed risk
assessment (WRA) system provides economic benefits \4\ and stated that,
while the proposed rule did not go as far as the Australian screening
system, the regulatory mechanisms are similar enough that creating a
NAPPRA list will generate economic benefits to the United States, in
addition to significant environmental and agricultural benefits. Some
commenters stated that landscaping efforts should concentrate on using
native species, making the importation of plants for planting
unnecessary.
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\4\ Keller R.P., Lodge, D.M., and Finnoff, D.C. 2007. Risk
assessment for invasive species produces net bioeconomic benefits.
Proceedings of the National Academy of Sciences 104:203-207.
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Some of the commenters noted that preventing the importation of
certain taxa of plants for planting might lead to restrictions on taxa
that ultimately prove to be safe, or that can be imported safely under
certain conditions, but stated that the risk posed by importation of
taxa of plants for planting that are quarantine pests or hosts of
quarantine pests should be addressed immediately for the good of the
wider environment. One commenter stated that maintaining strict
importation standards while not impeding trade is a delicate balance,
and it appears that the NAPPRA category can maintain that balance when
applied judiciously.
One commenter noted that strengthening the plants for planting
regulations was recommended by both the National Plant Board's 1999
Safeguarding Review and 2006 Peer Review Reports.\5\
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\5\ The Safeguarding Review is available on the Web at http://nationalplantboard.org/policy/safeguard.html; the peer review report
is available at http://nationalplantboard.org/docs/PR%20Report%207-17-06.pdf.
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Comments Supporting Broad Prohibitions or Restrictions on the
Importation of Plants for Planting

Under the regulations, most plants for planting may currently be
imported into the United States if they are accompanied by a
phytosanitary certificate and a permit and if they are inspected at a
U.S. Department of Agriculture (USDA) plant inspection station listed
in Sec. 319.37-14. Responding to the NAPPRA proposal, some commenters
urged us to impose broad prohibitions or restrictions on the
importation of plants for planting.
Five commenters recommended that we prohibit the importation of
plants that have not previously been imported until those plants are
tested rigorously and found to pose no ecological threat to existing
species. One of these commenters stated that, given the level of
uncertainty about risks that new organisms pose and the unpleasant
surprises from species thought to be benign in the past, this should
result in effectively blocking importation of all new plant species.
Nothing can be guaranteed to be safe, this commenter stated, so it
should be banned. This commenter also recommended that testing to prove
safety be paid for by industry, rather than the U.S. Government.
Another of these commenters echoed the point that new organisms
pose an uncertain risk, and urged us to prohibit the importation of
harmful species that are already present in the United States until
they can be tested and found to be safe. This commenter stated that a
recent study \6\ has shown that genotypes

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from different regions can hybridize, forming plants of great vigor
that are even more difficult to control.
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\6\ Rosenthal, D.M., Ramakrishnan, A.P., and Cruzan, M.B. 2008.
Evidence for multiple sources of invasion and intraspecific
hybridization in Brachypodium sylvaticum (Hudson) Beauv. in North
America. Molecular Ecology 17:4657-4669.
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One commenter recommended that we prohibit the importation of all
plants that have not previously been imported until a PRA has been
completed to determine what level of risk the plants pose and what
means may be available to mitigate that risk.
One commenter recommended that we add all imported plants for
planting to the NAPPRA category and only allow the importation of
plants for planting if they were produced under conditions designed to
prevent their infestation by quarantine pests (clean stock programs,
growth from tissue culture or seed, pre- or post-entry quarantine,
etc.).
Three commenters recommended prohibiting all importation of plants
for planting. One commenter cited a recent research paper \7\ that
examines the factors that result in the escape of plants from their
original plantings and concludes that the single most important factor
is propagule pressure. In other words, the longer a taxon has been held
in one place and the more plants there are, the more likely it is to
escape cultivation. Once taxa escape cultivation, some proportion of
them are likely to be noxious weeds. The commenter concluded that we
cannot make a determination that it is safe to import a taxon, as no
taxon is safe.
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\7\ Pysek, P., Krivanek, M., and Jarosik, V. 2009. Planting
intensity, residence time and species traits determine invasion
success of alien woody species. Ecology 90:2734-2744.
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One commenter stated that all importation of plants for planting
should be prohibited because some pests associated with plants for
planting may have no natural enemies. This commenter also stated that
local plants are where they are due to natural selection, and
interfering with this process by introducing new plants may harm the
environment.
Another commenter stated that it is not possible to accurately
assess the risks of introducing new pathogens on imported plants. The
commenter cited three reasons for this belief:
Native plant diseases are poorly known in most regions of
the world, and many disease-causing agents have very minor effects on
their native hosts. Thus, the knowledge needed to assess risk by plant
species or region is not available.
Quarantine inspections can miss the presence of a pathogen
that colonizes a plant as an endophyte (a plant pathogen that is
asymptomatic for at least part of its life), but when the same pathogen
encounters naive hosts or new climatic conditions the effects can be
devastating. The commenter cited a research paper demonstrating
this,\8\ and another providing conifer canker and needle diseases as
examples.\9\ Thus, the commenter stated, even careful screening of
imported plants is unlikely to prevent pathogen introductions.
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\8\ Palm, M.E. 2001. Systmatics and impact of invasive fungi on
agriculture in the United States. BioScience 51(2):141-147.
\9\ Wingfield et al. 2001. Worldwide movement of exotic forest
fungi, especially in the tropics and the southern hemisphere.
BioScience 51:134-140.
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Plant pathogens are often complexes of closely related
cryptic species or strains. This means that basing a determination of
risk on the knowledge that a particular pathogen is already present in
the United States is often erroneous, because pathogens known by the
same name are often different. The commenter cited the ``aggressive
strain'' of Dutch elm disease, which eventually was recognized as a
separate species, as an example. Thus, the commenter stated, we cannot
assume we will know the behavior of any pathogen once it is released
into a new environment.
The commenter allowed that it may be possible to safely move small
amounts of tissue-cultured plants that have been tested for the
presence of endophytic organisms (i.e., organisms that live at least
part of their lives within plants without causing apparent disease),
but stated that all other forms of plant movement present unacceptable
risk.
A few commenters specifically disagreed with the comments calling
for broad prohibitions and restrictions on the importation of plants
for planting; these commenters instead expressed support for the
approach in the proposed rule. Two of the commenters opposed
automatically adding all taxa not already established in the United
States to the NAPPRA category. Two stated that the benefits from
importing plants for planting can outweigh the risk of unwanted pests
as long as programs are in place to prevent pest introduction; that the
majority of all plants for planting, including seeds, cuttings, bare
roots, and bulbs, had their origins as imported materials brought into
the United States each growing season; and that each year, hundreds of
millions of propagules are safely imported into the United States to
support the demands of the U.S. public for decorative planting
materials, without harmful impact on the U.S. environment.
Another commenter stated that the NAPPRA concept, if applied with
care and discretion, strikes a balance among the competing requests to
impose broad restrictions on the importation of plants for planting and
to allow the importation of plants for planting subject only to the
existing general restrictions.
We are making no changes to the proposed rule in response to the
comments requesting that we impose broad prohibitions and restrictions
on the importation of plants for planting, beyond the general
requirements in the current regulations. The NAPPRA category is
designed to allow us to address the risk associated with plants for
planting on a taxon-by-taxon basis; adding broad prohibitions or
restrictions to the regulations would be beyond the scope of the
proposed rule.
We agree that there is uncertainty about the risk associated with
any imported plants for planting when those plants have not been
thoroughly studied. Our process for placing restrictions on the
importation of a taxon of plants for planting has typically involved
the preparation of a comprehensive PRA. This approach required us to
evaluate the uncertainty regarding all aspects of the risk associated
with the importation of the taxon before any action could be taken. The
NAPPRA category that we are adding to the plants for planting
regulations in this final rule gives us a streamlined, transparent
means to respond to new scientific evidence indicating that a taxon of
plants for planting is a quarantine pest or a host of a quarantine
pest, thus directly addressing risk while giving us the necessary time
to evaluate uncertainty. We will make every effort to respond to
scientific evidence as it becomes available.
It should be noted that the NAPPRA category is not the final step
we plan to take to ensure that the regulations provide an appropriate
level of protection against the risk associated with imported plants
for planting. Rather, the NAPPRA category is part of an ongoing effort
to revise the plants for planting regulations and to change the way we
respond to risks. As noted in the proposed rule, establishing the
NAPPRA category is just one of the changes discussed in an advanced
notice of proposed rulemaking (ANPR) published in the Federal Register
on December 10, 2004 (69 FR 71736-71744, Docket No. 03-069-1).\10\ We
appreciate

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the issues that the commenters raised and will keep them in mind as we
consider future rulemaking. For example, the issues cited by one
commenter regarding the lack of information that we would need to
assess risk by plant species or region highlight the need to gather
more and better data regarding pests that could potentially be
associated with plants for planting. Once we gather such data, of
course, the data could be used to add taxa to the NAPPRA category. The
NAPPRA category will also allow us to respond quickly to any new
information that allows us to better predict which taxa of plants for
planting can damage U.S. agricultural and environmental resources.
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\10\ The ANPR, as well as the comments we received on the ANPR,
can be viewed on Regulations.gov at http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2004-0024. The
ANPR contains a detailed discussion of the history of the nursery
stock regulations that is helpful for understanding their original
intent and current state.
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Although we do not agree with the recommendation that we add all
taxa of plants for planting to the NAPPRA category, we agree with the
commenter who stated that plants for planting that are hosts of
quarantine pests could be allowed to be imported if they are produced
under standard conditions designed to prevent their infestation by
quarantine pests, such as pest-free growth in tissue culture. We are
developing a proposed rule that would provide for various measures to
help facilitate the importation of taxa on the NAPPRA lists or the
lists of prohibited articles in Sec. 319.37-2. This effort is
discussed in more detail later in this document under the heading
``Risk-Mitigating Production Practices.''
One commenter asked how we will address uncertainty. Although the
proposed rule indicated that the decision to restrict the importation
of taxa of plants for planting will be made on the basis of scientific
evidence indicating that the importation of the taxa poses a risk, the
commenter stated that, often, that there is insufficient scientific
evidence to make a conclusion as to the level of risk posed by a
particular plant, a particular plant pest, or origin in a particular
country. The commenter asked whether a lack of available scientific
evidence will be a factor for adding plant taxa to the NAPPRA list.
One commenter stated generally that NAPPRA should address the risk
of new or little-known insects and pathogens, as scientific data is not
always available, especially in new environments.
Along the same lines, another commenter stated that, for many
quarantine pests, there will not be sufficient scientific data to
predict their impact after introduction to the United States. In fact,
the commenter stated, many quarantine pests are unknown to science
until they become pests in a new environment. The commenter stated that
it is important that USDA does not underestimate risk when evaluating
candidate taxa to appear on the NAPPRA list as quarantine pests or
hosts of quarantine pests, as there is often no way of determining the
damage a pest will incur to a new ecosystem before the introduction
occurs.
As stated earlier, we will only add a taxon to the NAPPRA category
if there is scientific evidence indicating that the taxon is a
quarantine pest or a host of a quarantine pest. Adding taxa to the
NAPPRA category for which we lack scientific evidence, based on
uncertainty, would result in the effective imposition of broad
restrictions on the importation of all plants that are not well-known.
As discussed earlier, our goal in establishing the NAPPRA category is
to provide a process for imposing restrictions that directly address
the risk associated with specific taxa of plants for planting, based on
scientific evidence.

General Opposition to the Proposed Rule

Several commenters expressed general opposition to the proposed
rule on the basis that it would impose additional restrictions that
might not be justified on the importation of plants for planting. Many
commenters characterized the proposed NAPPRA category as a prohibition
on the importation of plants for planting, with exceptions only for
plants that were assessed and determined to be safe. One commenter
expressed concern that the ultimate goal of our regulatory efforts was
to prohibit the importation of all plants for planting unless the
plants have been screened and found to be safe.
Some commenters raised specific concerns with respect to the
implications of a broad prohibition on the importation of plants for
planting. One commenter stated that invasive plants have many ways of
arriving in the United States and that few of them can be documented as
ornamental species that were introduced through horticulture. Two
commenters stated that any slowing or complication of the process of
importation of seeds and plant material only encourages the illegal and
undocumented shipping of that material. One commenter stated that a
broad prohibition on plants for planting would affect plants that are
only weeds in certain situations and are clearly valuable in others,
such as many food crops. One commenter stated that the costs associated
with testing every taxon of plants for planting to determine whether
each is safe would be prohibitive. One commenter stated that no
specific plants were cited in the proposed rule as being invasive or as
vectors of pests.
Some commenters opposed the proposed NAPPRA category on the grounds
that it would hamper the conservation of plant material. One commenter
stated that conservation of plant material is an extremely time-
sensitive process, and any slowing of the process could result in the
loss of important germplasm or even species. The commenter stated that
this would be absolutely fatal for material with short viability or for
emergency conservation measures. One commenter stated that seeds were
essential for preservation of biodiversity in agricultural systems;
another suggested that we should continue to allow the importation of
organic seed and other quality seed. One commenter stated that some
species may not be able to survive outside greenhouse conditions,
meaning there would be no need to prohibit their importation into the
United States.
As one of the commenters noted, we are not imposing any additional
restrictions on specific taxa of plants for planting in this final
rule. Rather, this final rule provides a process by which we can impose
restrictions on specific taxa. When we determine that a taxon of plants
for planting is a quarantine pest or a host of a quarantine pest, we
will publish a notice in the Federal Register to inform the public of
our determination and make available a data sheet that details the
scientific evidence that we used in making the determination. At that
point, any interested party will have the opportunity to comment on the
proposed addition of the taxon to one of the NAPPRA lists, supporting
or opposing the addition. We will particularly welcome comments on the
scientific evidence supporting our determination, which will be
detailed in the data sheet accompanying the notice.
Although one commenter stated that few quarantine pest plants had
been introduced through the horticultural trade, several commenters who
supported the proposed rule provided examples of ornamental species
imported for horticulture that had become quarantine pest plants. In
any case, as discussed, we are not imposing broad prohibitions or
restrictions on ornamental species imported for horticulture, or on any
other taxa imported for any other use.
Because only specific taxa of plants for planting will be added to
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NAPPRA lists, we do not expect that this final rule will result in a
large increase in illegal importation of plants for planting. We have
existing inspection, investigation, and enforcement processes that work
to prevent the importation of plants for planting whose importation is
prohibited in Sec. 319.37-2. We will use those processes to ensure
that NAPPRA taxa are not illegally imported in the same way that we
currently do for taxa whose importation is prohibited. We are also
providing for plants for planting listed as NAPPRA to be imported for
experimental or scientific purposes under controlled conditions, so
scientific research can be conducted on them.
Conservation of plant material will continue as it has under the
current regulations, unless a taxon of the plant material in question
is determined to be a quarantine pest or a host of a quarantine pest
and the taxon is subsequently added to one of the NAPPRA lists. As one
commenter noted, a taxon requiring conservation is unlikely to be added
to the NAPPRA lists as a quarantine pest, since any plant that has
difficulty surviving in field conditions is likely incapable of
reproducing enough to cause potentially economically important damage
to agricultural or environmental resources. For that reason, a taxon
that could not survive outside a greenhouse would also be unlikely to
be added to the NAPPRA lists.
With respect to the concerns about seed, we note that the NAPPRA
list of taxa that are hosts of quarantine pests allows the importation
of seed unless we specify that seed is regulated. We would only
regulate the seed of hosts of a quarantine pest if the pest in question
could be introduced and established in the United States through the
importation of seed.
Some commenters expressed specific concerns about the impact of a
prohibition on the importation of plants for planting except those that
have been determined to be safe for U.S. biodiversity and the
importation of plants with beneficial uses. One commenter cited the
discovery of important genetic variability in Sophora toromiro, now
extinct in the wild, in the hands of a Chilean nurseryman and other
individuals outside of botanic gardens, as indicating the importance of
not restricting public access to biological diversity.
In addition, the proposed rule discussed some comments we received
on the May 2004 ANPR that addressed biodiversity. We summarized these
comments as stating that any further restrictions on the importation of
plants for planting would adversely impact the overall biodiversity of
plants in the United States. We stated in the proposed rule that the
purpose of establishing the NAPPRA category, as with all our
restrictions on the importation of plants for planting, is to prevent
damage to agricultural and other resources caused by plants that are
plant pests or that are hosts of plant pests. Preventing this damage,
we stated, helps to ensure that the current biodiversity of the United
States is not adversely affected.
One commenter stated that there is no evidence that pests or
invasive species reduce biodiversity; rather, in all cases, they have
increased biodiversity. The commenter asked us to provide peer-reviewed
scientific evidence that biodiversity has decreased at any time because
of imports.
We appreciate the opportunity to clarify our statement. There are
multiple types of biodiversity that ecologists and other scientists
consider when evaluating biodiversity. Total biodiversity, the type to
which we believe the commenter refers, involves a simple count of the
number of species present in a country or in an area within a country.
Site-specific biodiversity may take into account the relative
distribution of taxa within a site, a larger area, or even a country.
We regulate the importation of taxa of plants for planting that are
quarantine pests or that are hosts of quarantine pests based on the
damage they could cause to U.S. agricultural and environmental
resources. Sometimes, the damage a quarantine pest causes can reduce
site-specific biodiversity. For example, if an imported quarantine pest
plant damaged previously thriving species and reduced their numbers
while rapidly propagating throughout their former habitat, the total
number of species at that site would have increased, but the diversity
of their distribution would have decreased substantially.
Similarly, the emerald ash borer may kill virtually all of the ash
trees in areas in which the beetle occurs. Although the total
biodiversity within the United States was increased by one species with
the introduction and establishment of the emerald ash borer, the
distribution of hardwood trees in U.S. forests where the emerald ash
borer occurs is markedly less diverse.
We will only add a plant taxon to the NAPPRA category if it is a
quarantine pest or a host of a quarantine pest. Preventing the
introduction of quarantine pests or hosts of quarantine pests into the
United States helps to avert the damage that would occur if they were
introduced. Sometimes, as discussed, that damage can reduce
biodiversity, meaning that preserving existing biodiversity is one
beneficial effect associated with preventing damage from quarantine
pests.
With respect to the general concerns about restricting access to
biodiversity, as we will only add specific taxa to the NAPPRA category
based on our determination that the taxa are quarantine pests or hosts
of quarantine pests, we do not believe that biodiversity and
importation of plants with beneficial effects will be widely affected.
The importation of most taxa of plants for planting will continue to be
allowed.
One commenter stated that the proposed rule did not seem to be
entirely in accordance with ISPM No. 1, ``Phytosanitary Principles for
the Protection of Plants and the Application of Phytosanitary Measures
in International Trade.'' (Countries that are signatories to the IPPC,
including the United States, commit to promulgating regulations that
are consistent with the various ISPMs, unless a country supports a
deviation from the ISPMs with a technical justification.) The commenter
specifically cited the principles of necessity, managed risk, minimal
impact, and technical justification that are discussed in that
document. The commenter stated that it would be difficult to provide
specific comments on this issue, as the list of plants added to the new
category is not known.
We are not adding any taxa of plants for planting to the NAPPRA
category in this rulemaking; this rulemaking only sets up the NAPPRA
category. Members of the public will have the opportunity to comment on
all additions to the NAPPRA category.
We have reviewed the principles cited by the commenter from ISPM
No. 1 and found the proposed rule to be in accordance with those
principles.
Necessity: ISPM No. 1 states that contracting parties (i.e.,
signatories to the IPPC) may apply phytosanitary measures only where
such measures are necessary to prevent the introduction and/or spread
of quarantine pests. We will only add taxa to the NAPPRA category when
it is necessary to do so to prevent the introduction of quarantine
pests, either taxa of plants for planting that are quarantine pests
themselves or taxa that are hosts of quarantine pests.
Managed risk and minimal impact: ISPM No. 1 states that contracting
parties should apply phytosanitary measures based on a policy of
managed

[[Page 31177]]

risk, recognizing that risk of the spread and introduction of pests
always exists when importing plants, plant products and other regulated
articles. It also states that contracting parties should apply
phytosanitary measures with minimal impact. However, no mitigation
measures are available for taxa of plants for planting that are
quarantine pests other than not authorizing their importation, or
allowing their importation only under a permit with conditions designed
to prevent their escape into the wider environment. We recognize that
mitigation measures may be available for some taxa of plants for
planting that are hosts of quarantine pests, but we would need time to
develop them and present them in a comprehensive PRA; during that time,
we would list such taxa as NAPPRA, to prevent the introduction of
quarantine pests into the United States. This is consistent with the
World Trade Organization (WTO) Agreement on Sanitary and Phytosanitary
Measures (SPS Agreement), which is the document that recognizes the
IPPC as a standard-setting body for plant health issues.
In Article 5 of the WTO SPS Agreement, paragraph 7 states: ``In
cases where relevant scientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of
available pertinent information, including that from the relevant
international organizations as well as from sanitary or phytosanitary
measures applied by other Members. In such circumstances, Members shall
seek to obtain the additional information necessary for a more
objective assessment of risk and review the sanitary or phytosanitary
measure accordingly within a reasonable period of time.'' The NAPPRA
process allows us to act on the basis of available pertinent
information and provides for review of the measure, meaning that NAPPRA
is consistent with the WTO SPS Agreement and thus with the governing
principles of international plant health regulation.
Technical justification. ISPM No. 1, quoting the IPPC, states that
contracting parties shall technically justify phytosanitary measures
``* * * on the basis of conclusions reached by using an appropriate
pest risk analysis or, where applicable, another comparable examination
and evaluation of available scientific information.'' A data sheet
detailing the scientific evidence we use in making a determination that
a taxon of plants for planting is a quarantine pest or a host of a
quarantine pest will be made available along with the Federal Register
notice announcing our determination. Commenters will be free to address
the adequacy of the scientific information we use in order to make such
a determination in their comments.

Definition of Quarantine Pest

We proposed to add a definition of the term quarantine pest to the
regulations in Sec. 319.37-1. As mentioned earlier, the proposed
definition read: ``A plant pest or noxious weed of potential economic
importance to the United States and not yet present in the United
States, or present but not widely distributed and being officially
controlled.'' This definition was based on the definition of quarantine
pest in the IPPC Glossary of Phytosanitary Terms.
In the proposal, we noted that the PPA definition of ``noxious
weed'' includes references to the weed's impact on agriculture, natural
resources, public health, and the environment, among other things,
while the IPPC definition of quarantine pest itself refers only to
economic importance. However, Appendix 2 to the IPPC Glossary explains
that the term ``economic importance'' is to be understood as having a
broad meaning encompassing potential damage to the natural environment
as well.
Several commenters recommended that we explicitly include in the
definition of quarantine pest references to the potential environmental
and public health importance of the pest. While acknowledging that
Appendix 2 to the Glossary contains references to these areas, these
commenters stated that the definition would be more easily understood
if it incorporated references to the environment and public health.
Another commenter stated that APHIS should consider revisions to
the regulations that allow for protection of natural ecosystems, unless
the responsibility to manage and regulate imports that could have
damaging impacts to natural systems in the United States is under the
jurisdiction of another agency. The commenter stated that natural
ecosystems in the United States are integral to American agriculture,
supporting livestock grazing and meat production and providing habitat
for native pollinators, which are becoming increasingly important to
agricultural crop production with the continued decline of European
honeybees.
We appreciate the commenters' concerns. However, we have determined
that it is not necessary to include references to the potential
environmental or public health importance of a quarantine pest in the
definition of quarantine pest. As stated in the proposal, the term
``economic importance'' has a broad meaning. Clearly, a pest that
caused damage to the wider environment (including natural ecosystems)
would be of economic importance, and we have regulated pests as
quarantine pests that pose a threat primarily to the environment rather
than to agricultural resources; the Asian longhorned beetle and P.
ramorum are two examples.
We would also consider the potential public health impacts of a
pest, as such impacts would necessarily have an effect on the economy.
For example, we list giant hogweed (Heracleum mantegazzianum) as a
noxious weed in part because its leaves and stem produce a clear sap
that photosensitizes the skin of humans, leading to photodermatitis,
which results in painful and lasting blisters. Sap that comes into
contact with the eyes can cause temporary or permanent blindness.
Another noxious weed, kodomillet (Paspalum scrobiculatum), clogs
irrigation and drainage ditches and is toxic to animals and humans.
Such noxious weeds clearly affect public health, and thus have economic
impacts.
The definition of quarantine pest incorporates the terms plant
pest, as it has been defined in Sec. 319.37-1, and noxious weed, a
definition of which this final rule adds to Sec. 319.37-1. The
definition of plant pest refers to damage to any plant or plant product
and thus encompasses damage to environmental resources as well as
agricultural resources. As commenters noted, the definition of noxious
weed refers to damage to crops (including plants for planting 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. This definition also encompasses
environmental and public health concerns. By incorporating the
definitions of plant pest and noxious weed into the definition of
quarantine pest, we make clear our intentions to regulate to protect
the environment and, where applicable, public health as well as
agriculture.
We proposed to remove the definition of plant pest from the
regulations in the proposed rule, as we proposed to use the term
quarantine pest exclusively elsewhere in the regulations. However, to
ensure that the meaning of the term plant pest within the definition of
quarantine pest is understood, and to make it clear that damage to
environmental resources as well as agricultural resources is considered
in

[[Page 31178]]

determining whether a pest qualifies as a quarantine pest, we are
retaining the definition of plant pest in this final rule.
We have long considered the effects of quarantine pests on the
environment and on public health in making regulatory decisions. For
example, we prepare our PRAs for fruits and vegetables in accordance
with guidelines that consider the environmental impacts of introducing
quarantine pests associated with those commodities into the United
States. Environmental impacts that we consider for such quarantine
pests include ecological disruptions, reduced biodiversity, effects on
threatened or endangered species, and the likelihood that the
introduction of the species would stimulate chemical or biological
control programs. Our guidelines for preparing a WRA, which are
available on the Web at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/wra.pdf, also specifically consider the
environmental impacts of the taxon that is being evaluated; the
environmental impacts include several ecosystem-related considerations,
including natural system processes, community composition, and
community structure, as well as potential impacts on human health, such
as allergies or changes in air or water quality (for example, due to
toxins).
The definition of quarantine pest that we are adding to the
regulations in this final rule thus does not represent a change from
our current policy, and we will continue to consider environmental and
public health consequences associated with the introduction and
establishment of quarantine pests.

Definition of Official Control and Scope of the NAPPRA Category

As noted, we proposed to define a quarantine pest as a plant pest
or noxious weed that is not yet present in the United States, or
present but not widely distributed and being officially controlled. We
proposed to add a definition of official control to the regulations in
Sec. 319.37-1 as well; it was based on the definition of that term in
the IPPC Glossary. The definition we proposed read as follows: ``The
active enforcement of mandatory phytosanitary regulations and the
application of mandatory phytosanitary procedures with the objective of
eradication or containment of quarantine pests.''
Several commenters stated that taxa of plants for planting that are
present in the United States should be eligible for designation as
quarantine pests and thus evaluated to determine whether those plants
should be added to the NAPPRA list of quarantine pest plants.
One commenter stated that the proposal should not be limited to
addressing certain species based on their history of importation; such
a limitation, in the commenter's view, has no scientific basis. Another
commenter stated that species already introduced into the United States
are among those that pose the highest risk, both because they have
already entered the United States and because many plants that
establish in the United States are inherently invasive.
Some commenters stated that all plants present in the United States
should be included in the scope of the NAPPRA category because the risk
associated with plants already present in the United States can change
unexpectedly. Another commenter stated that we do not know the
potential that many plant species have for invasiveness in the face of
further fragmentation and climate change. Similarly, two commenters
stated that the economic importance of each plant present in the United
States should be evaluated.
One commenter who supported adding plants that are present in the
United States to the NAPPRA lists cited Russian olive's recent spread
into ecosystems in the western United States as indicating that taxa
already present in the United States are likely to cause problems.
We agree with these commenters that plant taxa that are already
present in the United States may cause damage to agricultural and
environmental resources within the United States. Our definition of
quarantine pest does not prevent us from restricting the importation of
taxa of plants for planting that are already in the United States, if
those taxa are not widely distributed and under official control. (For
simplicity, the rest of this discussion will refer to ``under official
control'' without mentioning the distribution criterion, except where
it needs to be emphasized.) However, the purpose of the NAPPRA category
is to address the risk associated with the importation of taxa of
plants for planting. Restrictions on the interstate movement of plants
for planting (as well as other commodities) to prevent the spread of
quarantine pests within the United States are found in 7 CFR parts 301,
302, 318, and 360.
It is important to note that determining that a plant taxon is
invasive is not the same as determining whether it is a quarantine
pest. For a plant taxon to be classified as a quarantine pest, that
plant taxon must be a noxious weed of potential economic importance to
the United States, based on the damage it causes to agricultural and
environmental resources, and must not be present in the United States,
or present but under official control. The spread of a plant in a new
habitat, which is commonly characterized as ``invasiveness,'' would not
be sufficient by itself to cause us to determine that a plant should be
considered for designation as a quarantine pest.
For plants for planting that are present in the United States, we
have determined that the best use of APHIS' limited resources for
evaluation of taxa of plants for planting, and for ensuring that plants
for planting whose importation is not authorized are not imported, is
to limit the scope of the NAPPRA category to plant taxa that are under
official control. There are several reasons for this. One is that if a
taxon of plants for planting spreads quickly enough and causes enough
damage to be a quarantine pest, and the taxon is not under official
control within the United States, that taxon would likely expand its
range to all suitable areas within the United States even if we were to
add it to the NAPPRA list. Adding the taxon to the NAPPRA list might
result in fewer introductions of the taxon to areas where the taxon is
not yet present, but would not ultimately prevent its spread to those
areas. Given that we have limited resources to evaluate an immense
number of taxa that could potentially be imported, it is appropriate to
focus our efforts where they will be most effective at preventing
damage to U.S. agricultural and environmental resources.
Another reason for requiring plant taxa to be under official
control before adding them to NAPPRA is that the imposition of official
control on the movement of a taxon within the United States is a good
indication that the taxon is of economic importance, although some taxa
may be placed under official control and found not to be sufficiently
economically important to continue official control upon later
evaluation. If a pest is present and plant health authorities determine
that it is of such economic importance that they impose official
controls, the pest would become a quarantine pest. This again helps to
focus our evaluation efforts.
Finally, not authorizing the importation of a plant taxon while
allowing the free movement of that plant taxon within the United States
would be inconsistent with APHIS' commitment to the WTO principle of
nondiscrimination between domestic and import requirements, as it would

[[Page 31179]]

treat the importation of the plant taxon differently from its
interstate movement.
It should be noted that, under this final rule, we may add to the
NAPPRA category a taxon of plants for planting that is already present
in the United States and not under official control if that taxon is a
host of a quarantine pest that is not present in the United States, or
one that is present but not widely distributed and under official
control; the importation of such a taxon would pose a risk of
introducing a quarantine pest.
One commenter stated that the importation of any taxon should be
restricted if its harmful impacts on the United States outweigh its
benefits, regardless of whether the taxon is present in the United
States. This commenter stated that inclusion of such plants is
supported by the proposed definition of quarantine pest if the
definition of official control is interpreted to include State and
local mandates aimed at eradication or containment. The commenter
further stated that mandates at the State and local levels are often
the most responsive to new pests inflicting damage on the ground before
the pest becomes widespread.
Another commenter stated that requiring plant taxa to be under
official control in order to qualify as quarantine pests strains local
agencies. If a plant is infrequently present, and believed to be of
concern, but the local agencies do not have the money to place the
plant taxon under official control, the commenter stated, then the best
response is not to exacerbate the problem by permitting the taxon's
importation. The commenter expressed concern that regions with more
limited financial support for official control measures will be
subjected to more pests and invasions than those with the resources to
designate many pests as under control. Substituting ``official
designation'' or being ``recognized risk'' as a problem plant, the
commenter stated, should suffice for WTO standards without requiring
impossible expenditure.
We agree that State and local governments are invaluable partners
in identifying and responding to new pests. We work closely with State
and local governments to share information about pest problems, develop
phytosanitary controls, and enforce restrictions on the intra- and
interstate movement of plants for planting.
We are developing a process by which a State will be able to
request that APHIS recognize its regulations and procedures as official
control for the purposes of Federal regulation; we will grant
recognition if an evaluation of the regulations and procedures
indicates that they are effective and justified based on the economic
importance of the pest. Such regulations and procedures could include
both control and eradication programs and designation of a plant taxon
as subject to movement restrictions. We plan to publish a notice in the
Federal Register to provide information about this process once its
development is complete. We believe this process will address the
second commenter's concerns.
With respect to the first commenter's first point, we will only add
plants for planting that are present in the United States to the NAPPRA
list if they are under official control, for reasons discussed earlier.
One commenter stated that the regulations should clearly state that
quarantine pests: (1) Do not necessarily have to be under official
control if they are already present but not yet widespread; and (2) may
be later placed under official control as a condition of being listed
as a quarantine pest following a PRA.
A pest already present in the United States would not be considered
to be a quarantine pest unless it was not widely distributed and under
official control. A pest must meet both conditions in order to be
considered a quarantine pest.
In practical terms, if a pest is present in the United States but
not yet widely distributed, it is much more likely to be designated as
a quarantine pest than a pest that is widely distributed, as official
control is more likely to be effective for a pest that is not widely
distributed. Thus, while we are not taking the commenter's suggestion
to make pests that are not under official control eligible to be
quarantine pests, most pests that are of economic importance and whose
distribution is limited would be eligible for designation as a
quarantine pest, assuming that we determine that official control is
justified in response to its presence.
As the commenter alludes, one means by which we might determine
that a pest is of economic importance is through the completion of a
PRA. If we complete a PRA that determines that a pest is of economic
importance to the United States, and we determine that enforcing
mandatory regulations to control or eradicate the pest is practical and
justified by the importance of the pest, we would designate that pest
as a quarantine pest. We could then prohibit or restrict its
importation, as appropriate, under the plants for planting regulations.
One commenter asked how introductions of plants for planting that
are discovered in the field would be covered under the proposed rule.
The commenter expressed specific concern about the accidental
introduction of taxa of plants for planting that become plant pests,
such as mile-a-minute weed (Persicaria perfoliata) and Japanese stilt
grass (Microstegium vimineum), and taxa of plants for planting that are
plant pests and whose introduction pathway is unknown, such as wavyleaf
basketgrass (Oplismenus hirtellus ssp. Undulatifolius).
If we discover an introduction of a taxon of plants for planting
that may be a quarantine pest, we will evaluate it. If the taxon is
under official control and is of economic importance, we will publish a
notice proposing to add the taxon to the NAPPRA lists. If the taxon is
not under official control, we will further evaluate whether the taxon
should be under official control; if the taxon is of sufficient
economic importance, we will take appropriate regulatory action, which
would normally be adding it to the list of noxious weeds in 7 CFR part
360. We will also recognize State and local official control programs,
if they exist, in considering whether to list a pest plant in the
NAPPRA category. The NAPPRA category does not restrict our ability to
take appropriate action if we find a quarantine pest within the United
States; it simply provides us with a tool to address the risk
associated with the importation of certain taxa of plants for planting.
One commenter encouraged APHIS to consider ways to address
potentially invasive species that are present in the United States but
have not yet begun to spread, through means other than the plants for
planting regulations if necessary.
We consider preventing the importation of species under official
control to be a powerful tool to address such species. As noted
earlier, we also work with State and local governments to share
information about pest problems and to develop phytosanitary controls
for emerging pests. We will consider whether there are other
appropriate ways to achieve this goal, and we welcome any suggestions
on how to accomplish this that the public can provide.
One commenter supported using a quarantine pest list to place taxa
on the NAPPRA list and asked whether the APHIS actionable pest list
would be used for this purpose as well.
The APHIS actionable pest list is used at ports of entry to
determine whether a pest found on imported plant material

[[Page 31180]]

(whether plants for planting, fruits and vegetables, or any other plant
material) requires regulatory action, such as treatment or re-
exportation. Pests are added to the actionable pest list based on their
potential to cause damage within the United States if introduced. We
will use this list as a source of taxa to be evaluated for addition to
the NAPPRA category.
Several commenters addressed the issue of when a plant taxon should
be considered to be ``present in the United States,'' as part of the
proposed definition of official control. Several commenters recommended
that APHIS collect the full taxonomic identity of all imported plants
and immediately begin developing a database of those plants that have
already been imported. Some commenters stated that we should make this
information publicly available.
We agree that we need better data on the plants that have been
imported into the United States. We are exploring many means for
obtaining that data. Currently, under Sec. 319.37-4, a phytosanitary
certificate must accompany almost all imported plants for planting.
Under Sec. 319.37-4, the phytosanitary certificate must identify the
genus of the article it accompanies. When the regulations place
restrictions on individual species or cultivars within a genus, the
phytosanitary certificate must also identify the species or cultivar of
the article it accompanies. Otherwise, identification of the species is
strongly preferred, but not required. For articles that are not
required to be accompanied by a phytosanitary certificate, we require
alternate means of taxonomic identification. We are using the taxonomic
and volume information collected under these requirements to begin
building a database of imported plants for planting. We are also
exploring other potential sources of data on this topic. If we get the
necessary data, we will consider making it publicly available.
Some commenters suggested specific thresholds to determine whether
a taxon of plants for planting is present within the United States.
One group of commenters recommended that any taxon that does not
have at least a 50-year record of cultivation outside its native range
be placed automatically on the NAPPRA list. The commenters suggested
that if records of historical cultivation of a taxon are not readily
available through standard sources, the taxon should be placed on the
NAPPRA list. The commenters recommended that we allow any party
proposing to import a taxon added to the lists because no records of
historical cultivation were available to request reevaluation by
supplying records of cultivation for over 50 years.
Another commenter stated that a species without a long record of
cultivation outside its native range should be treated cautiously even
if it has not yet become invasive, given the potential lag time between
introduction and invasion.
The commenters appear to proceed from the assumption that all taxa
of plants for planting are quarantine pests. As discussed earlier in
this document, we have not found this to be the case. Taking the
commenters' recommendations would stop the importation of most taxa of
plants for planting, including all taxa that have not previously been
imported and most taxa that are currently being imported, without
scientific evidence to indicate that any specific taxa among them are
quarantine pests or hosts of quarantine pests. Our goal in establishing
the NAPPRA category is to provide a process for imposing restrictions
that directly address the risk associated with specific plants for
planting, not to establish broad prohibitions or restrictions on the
importation of plants for planting.
Some commenters (describing taxa already present in the United
States as ``precedented'') stated that taxa of which at least 1,000
propagules (any plant material used for propagation) have been imported
into the United States in 1 or multiple shipments and that are still
extant within the United States should be considered precedented.
We would generally consider taxa of plants for planting that meet
the threshold suggested by the commenters to be present in the United
States. However, there may be cases in which fewer than 1,000
propagules of a taxon have been imported, but the propagules that have
been planted have resulted in the taxon's widespread distribution. Such
a taxon would be considered to be present in the United States for the
purpose of determining whether it is a quarantine pest. In addition, we
currently lack data that would allow us to determine whether 1,000
propagules of a taxon have been imported into the United States, or
whether those propagules still existed in the United States, if the
taxon has not entered wider cultivation. When we publish a notice in
the Federal Register indicating that we have determined that a taxon of
plants for planting is a quarantine pest, we will welcome any data on
previous importation of the taxon that the public can provide.
Two commenters recommended that we add to the regulations a
definition of ``in cultivation,'' apparently as a proxy for determining
whether a plant taxon is present in the United States and not under
official control. These commenters recommended that we define taxa as
``in cultivation'' if they currently are, or have in the past been,
grown intentionally by one or more persons in the United States. The
commenters stated that previously grown taxa should be defined as ``in
cultivation'' because it is common for a species to be brought into
cultivation by a specialist gardener, die out, and then be re-imported
while the gardener learns how to grow it. The commenters noted that the
fact that a species died out despite being grown carefully by a
specialist is extremely strong evidence that the species is not
invasive.
The commenters recommended that, when a taxon is selected for
potential inclusion in the NAPPRA lists, the public should be given the
opportunity to state whether or not that taxon is in cultivation. If
after inclusion in the NAPPRA list it is discovered that a taxon was
already in cultivation in the United States, the commenters recommended
that such information, if verified by APHIS, should be grounds for
removal of the taxon from the NAPPRA list. The commenters noted that
APHIS could then conduct a PRA on that taxon if there are concerns that
it might be invasive.
We have determined that it is not necessary to add a definition of
``in cultivation'' to the regulations. The definitions of quarantine
pest and official control more precisely indicate that, when
determining whether a taxon of plants for planting is a quarantine
pest, we consider whether the taxon is present in the United States,
regardless of whether it is in cultivation or in the wild. However, we
agree with the commenters that the fact that a taxon died out in
cultivation would be useful evidence in evaluating whether that taxon
could qualify as a quarantine pest. Every time we make a determination
that a taxon of plants for planting is a quarantine pest, we will
publish a notice in the Federal Register informing the public of our
determination and requesting public comments. Commenters will have an
opportunity to provide information indicating that the taxon is in
cultivation, which would indicate that the taxon is present in the
United States, and thus not eligible for addition to the NAPPRA
category unless it is under official control. If commenters indicate
that the taxon was at one point in cultivation but died out, that would
indicate that the taxon would be unlikely to cause economically
significant damage, and

[[Page 31181]]

we would consider that to be evidence against adding the taxon to the
NAPPRA category.
We will typically consult several sources in determining whether a
plant is present in the United States, including the PLANTS database
(at http://plants.usda.gov/) and the GRIN database (at http://www.ars-grin.gov/cgi-bin/npgs/html/index.pl) and various flora and plant
catalogues. These resources indicate whether there is a known, active
presence of a plant in the United States, both in cultivation and in
the wild.
Another commenter stated that the presence of a plant in a limited
number of places does not mean that a particular importation is safe
from carrying pests, or being a pest. The presence in the United States
of a specimen brought through one pathway, or present in a botanic
garden, for example, provides minimal evidence that the same species,
imported in quantity from a different country, is safe from carrying
pests or becoming a pest. The commenter stated that evidence from such
individual specimens tells us very little about the risk of importing
them in quantity since they may not have both sexes, sufficient self-
incompatibility alleles, or time and habitat to show whether breeding
and invasion would occur.
This commenter also stated that, if any presence is sufficient to
exclude a taxon from designation as a quarantine pest, it would
encourage poor taxonomy to circumvent the rules. An importer could
search the catalog of botanic gardens to see if any close relatives are
present and classify the importation under that taxon. Unless an expert
could recognize the difference during the permitting process or
importation, this commenter stated, another species could be allowed
for importation based upon the evidence of a single specimen or just a
few.
We agree with this commenter that the presence of a plant taxon in
the United States does not necessarily provide information about
whether it is a pest. Unless the plant is also under official control,
though, it would not be eligible for consideration as a quarantine
pest. However, as noted earlier, we could still add the taxon to NAPPRA
if it was a host of a quarantine pest.
It is worth noting that we typically would not have a record of a
plant's cultivation if only a single specimen or very few plants of
that taxon were present in the United States, and if a plant was
imported under a false taxonomic designation, we would almost certainly
have no record at all of its importation and cultivation. Thus, if
evidence indicated that such a plant taxon was a pest of potential
economic importance to the United States, we would publish a notice in
the Federal Register announcing our determination that the taxon was a
quarantine pest.
Also, our regulations require the phytosanitary certificate
accompanying imported plants for planting to contain correct taxonomic
information. If we determine that the phytosanitary certificate under
which the plants for planting were imported had included incorrect
information, we would refuse entry for the consignment of plants for
planting, the importer would be subject to civil or criminal penalties
under the PPA for violating the regulations, and we would notify the
NPPO of the exporting country of this non-conformance with our
regulations and the IPPC.
This commenter went on to state that it is worrisome that the
simple presence of a few plants in the United States could prevent
APHIS from conducting a PRA or WRA, which would strongly incentivize
questionable behavior to allow importations. The commenter stated that
there have been rumors for years of environmentalists arranging to find
endangered species near a project they wish to block, or developers
happening to have endangered species disappear before officially
noticed. The commenter expressed concern that a similar problem would
arise with respect to plants for planting: To allow for a potentially
lucrative import pathway, one would merely need to find a presence of
the species in the United States not under official control. This could
be due to an illegal importation or other release. Upon identifying the
minimum standard of some individuals reproducing in the wild, the
commenter stated, the whole risk assessment is at risk of collapse.
The existence of some individuals of a plant taxon in the United
States does not make it impossible for APHIS to conduct a PRA and WRA
on the taxon; APHIS still has the option of conducting a PRA and WRA
and determining that the plant taxon should be placed under official
control, either as a noxious weed or as a host of a quarantine pest.
With respect to adding taxa to the NAPPRA category, which the commenter
may have been concerned about as well, the existence of a few
individuals of a taxon within the United States would not prevent us
from adding that taxon to the NAPPRA category if we also determine that
the taxon poses such a risk that it must be placed under official
control.
One commenter stated that we should evaluate for addition to the
NAPPRA lists all taxa that do not have a long history of being imported
pest-free from a specific country and that are not characterized by
stable production conditions. The commenter stated that such criteria
will allow APHIS to better predict risk when considering plants that
have a history of importation.
We will take the information the commenter suggests into account
when deciding which taxa to evaluate for inclusion in the NAPPRA
category, as such taxa are more likely to be quarantine pests than taxa
that have long histories of safe importation and stable production
conditions. We will also take such information into account as we
continue the process of revising our plants for planting regulations.
As noted earlier, we based the proposed definition of official
control on the definition of that term in the IPPC Glossary. The only
change we made to the IPPC definition was to omit the provisions
relating to regulated non-quarantine pests, because the plants for
planting regulations do not presently include provisions for regulating
non-quarantine pests.
One commenter stated that, while the concept of regulated non-
quarantine pest has not yet been formally applied in the United States,
the National Plant Board's 1999 Safeguarding Review urged
implementation of the concept and provided specific phytosanitary
issues for which the concept could be relevant. Indeed, the commenter
stated, the use of provisions for regulated non-quarantine pests is
being actively discussed as an alternative regulatory approach to full
deregulation of plant pathogens that are now classified as quarantine
pests. The commenter urged APHIS to take the proactive step of defining
``regulated non-quarantine pest'' at this time, consistent with the
IPPC definition.
We believe it would be confusing to include in our definition of
official control a reference to a type of pest that would not otherwise
be referred to in the regulations. If, in the future, we propose to
amend the plants for planting regulations to address regulated non-
quarantine pests, we would amend this definition to include regulated
non-quarantine pests, consistent with the IPPC Glossary definition.
We will continue to consider regulating non-quarantine pests as a
potential means to manage the risk associated with plants for planting
and other plant products. Our decision not to include this language in
the definition of official control in this final rule should not be
construed to indicate that we have decided against using the

[[Page 31182]]

regulated non-quarantine pest regulatory approach in the future.

Definition of Plants for Planting

We proposed to add a definition of plants for planting to the
regulations in Sec. 319.37-1. The proposed definition read as follows:
``Plants intended to remain planted, to be planted or replanted.''
Several commenters stated that the proposed definition is less
clear than the definition of plant in the PPA, which reads as follows:
``Any plant (including any plant part) for or capable of propagation,
including a tree, a tissue culture, a plantlet culture, pollen, a
shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and
a seed.'' These commenters asked that we use this definition in Sec.
319.37-1.
We already define plant in Sec. 319.37-1 using the definition of
plant in the PPA. We proposed to define plants for planting in Sec.
319.37-1 to make the plants for planting regulations consistent with
the IPPC Glossary of Phytosanitary Terms. The definition of plants for
planting refers to the definition of plant; any plant for planting is
by definition a plant. Thus, all the information in the PPA definition
of plant is already in the regulations. We are making no changes in
response to these comments.

Definition of Noxious Weed

We proposed to add a definition of noxious weed to the regulations
in Sec. 319.37-1. The proposed definition read as follows: ``Any plant
or plant product that can directly or indirectly injure or cause damage
to crops (including plants for planting 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.''
One commenter stated that every species can be considered to
``indirectly injure the environment'' by some criterion and noted that
some invasion biologists consider the mere presence of any plant deemed
``non-native'' to be ``harm'' to the environment. The commenter asked
how economic harm and economic benefit would be evaluated and balanced.
The commenter also asked how ecological harm would be defined and what
scientific basis there would be for the definition. As examples of
potentially problematic cases, the commenter stated that wheat and
maize ``harm'' the environment because their cultivation destroys
thousands of square miles of formerly diverse prairie ecosystem and
replaces them with monotypic ``crop deserts'' with increased erosion
and high loads of toxins. The commenter also noted that hydrilla harms
navigation by interfering with small boats, but benefits fisheries and
birds.
The proposed definition of noxious weed is almost identical to the
definition of noxious weed in the PPA, except that a reference to
``nursery stock'' in the PPA definition was changed to ``plants for
planting,'' to be consistent with our other proposed changes to the
regulations. The proposed definition thus reflects our statutory
authority.
We proposed to use the term noxious weed in the plants for planting
regulations only with respect to the NAPPRA category; the regulations
for plants that we regulate as noxious weeds are in 7 CFR part 360. The
regulations governing the NAPPRA category, as established in this final
rule, allow us to ensure that the importation of plant taxa that are
quarantine pests (and thus noxious weeds) is not authorized. We will
only list in the NAPPRA category quarantine pest plants that are of
potential economic importance to the United States and not yet present
in the United States, or present but not widely distributed and being
officially controlled. Wheat and maize are thus not problematic with
respect to the NAPPRA category, as they are widely distributed in the
United States and not under official control. Hydrilla (Hydrilla
verticillata) is listed as a Federal noxious weed in 7 CFR part 360 and
may only be imported under a permit containing conditions to prevent
its dissemination in the United States.
With respect to the commenter's concern about defining ``ecological
harm,'' when evaluating plant taxa for inclusion on the NAPPRA list of
quarantine pest plants, we would evaluate whether the taxon has the
potential to cause the injury or damage described in the proposed
definition of noxious weed, based on scientific evidence. If we
determine that the damage is of potential economic importance, thus
making the taxon a quarantine pest, we will publish a notice in the
Federal Register announcing our determination and making a data sheet
detailing the scientific evidence that we evaluated in making that
determination available for public comment. At that point, the public
will have the opportunity to comment on our determination.
After a taxon is listed in the NAPPRA category as a quarantine
pest, a WRA would be conducted. If the WRA found that the taxon itself
did not need to be listed as a noxious weed, a PRA would be conducted
in order to fully analyze the potential of the taxon to serve as a host
of a quarantine pest. (A WRA is a type of PRA that focuses on the risk
associated with the plant itself. When we refer to a PRA in this
document and in the regulations, we mean an analysis of both whether
the taxon should be regulated as a noxious weed under the regulations
in 7 CFR part 360 and whether it should be regulated as a host of a
quarantine pest, as appropriate.) Any subsequent rulemaking to prohibit
the importation of the taxon, or to allow its importation subject to
restrictions, would include a detailed evaluation of the costs and
benefits of importing the taxon.

Definition of Taxon (Taxa)

We proposed to add a definition of taxon (taxa) to the regulations
in Sec. 319.37-1; it was based on the definition of that term in the
IPPC Glossary. The proposed definition read as follows: ``Any grouping
within botanical nomenclature, such as family, genus, species, or
cultivar.'' The proposed rule referred to adding taxa of plants for
planting to the NAPPRA category.
One commenter recommended that we use scientifically valid
taxonomic levels for evaluating quarantine pests. For pests, the
commenter stated, this could include sub-species designations such as
pathogen genotypes that can vary highly in impacts and can also
hybridize with established non-native or native microorganisms. For
pest hosts, the commenter stated, some pests can impact many species
above the generic classification. For example, a pathogenic disease
strain was introduced to Hawaii that infects 23 different plant species
present in Hawaii, including 5 native species, one of which is
critically endangered. These species are spread over 12 genera within
the myrtle family. Because the pest is not under official control, the
commenter stated, it does not qualify as a quarantine pest, although
there are likely other genotypes not yet present in the United States
that could increase the threat to Hawaii and further jeopardize trade
with other Pacific Rim countries.
Several commenters expressed concern that we might add large groups
of plants for planting to the NAPPRA category without adequate
scientific justification. One stated that the level of rigor required
to regulate should increase with each increasing level of nomenclature.
Two stated that we should add new taxa to the NAPPRA category at the
species level rather than at the genus level, as plant genera are far
too variable for broad bans to be

[[Page 31183]]

meaningful, and regulation at the genus or higher level will discredit
the system in the eyes of plant enthusiasts.
One commenter asked what would prevent us from including an entire
family in the NAPPRA category, such as the Solanaceae. The commenter
stated that such an action could easily be justified on the basis that
doing so will ``help prevent [the introduction of] a quarantine pest.''
The commenter stated that banning large groups of plants would lead to
a situation in which the importation of most plants for planting is
banned in practice.
One commenter stated that we should not base determinations of
invasiveness on relatives of a species. The commenter gave the example
of the genus Lonicera, in which Lonicera japonica, L. maackii, L.
tatarica, and L. xylosteum (in decreasing order of invasiveness) might
be weedy, but their weediness would not be evidence sufficient to
designate the other 180-200 species in the genus as weedy.
We agree with the first commenter that we should regulate at the
appropriate taxonomic level, and we will take the considerations the
commenter mentioned into account.
We will provide scientific evidence that supports our determination
that it is necessary to add a taxon of plants for planting to the
NAPPRA category, including providing evidence that the taxonomic
grouping we are adding to the NAPPRA category is appropriate. As with
the rest of our scientific evidence, the public will be able to comment
on whether the taxonomic level at which we have determined it is
necessary to regulate is appropriate. If public comments lead us to
determine that the taxonomic grouping specified in the initial Federal
Register notice is not appropriate, we will not add the taxon to the
NAPPRA category. (In that case, we might publish a second notice in
which we address a different taxonomic grouping.)
In adding plants that are quarantine pests and plants that are
hosts of quarantine pests to the NAPPRA category, we expect to continue
our current practices with respect to regulating at different taxonomic
levels. Most noxious weeds are regulated at the species level, although
higher and lower taxonomic levels have been regulated as noxious weeds
based on scientific evidence. For example, Striga spp. are all listed
as parasitic weeds in 7 CFR part 360, while only the Mediterranean
clone of the species Caulerpa taxifolia is listed as an aquatic weed.
We would only add taxa higher than the species level to the NAPPRA
category as quarantine pests if most of the species in a genus had been
shown to be quarantine pests; we would not regulate the entire Lonicera
genus in the example given by one commenter.
Most hosts of quarantine pests are regulated at the genus level,
given the wider range of species within a genus that can be hosts of
quarantine pests; again, we have regulated both higher and lower
taxonomic levels as hosts of quarantine pests based on scientific
evidence.
We would not typically add families of plants for planting to the
NAPPRA category, although some families have been regulated as hosts of
quarantine pathogens. (For example, the importation of Rutaceae is
prohibited due to various citrus pathogens.) If we did determine that
it was necessary to add an entire family to the NAPPRA category, we
would provide scientific evidence supporting our determination.

Initiating an Evaluation of a Plant Taxon for Addition to the NAPPRA
Category; Public Requests

In the proposal, we did not describe the conditions under which we
would begin an evaluation of a plant taxon to determine whether it
should be added to the NAPPRA category, stating only that the addition
of a taxon would be based on scientific evidence.
One commenter asked what the triggering mechanism would be for
adding a taxon. The commenter asked whether a taxon would be considered
for listing any time an exporting country, or a U.S. importer of plants
for planting, notified APHIS that it wanted to import those plants for
planting. The commenter also asked how the NAPPRA category would apply
to plant explorers bringing in small numbers of plants for planting
from globally dispersed locations in order to propagate them on a trial
basis. Other commenters asked generally for more information on the
Plant Protection and Quarantine (PPQ) program's process for initiating
an evaluation.
We appreciate the opportunity to provide more information on the
NAPPRA listing process. We would initiate an evaluation of a taxon of
plants for planting for addition to the NAPPRA category whenever we
become aware of a quarantine pest risk associated with the importation
of a taxon of plants for planting. This could include interceptions of
imported plants for planting that are infested with quarantine pests,
literature reviews and scientific references, and results from
scientific screening systems and predictive models. We would not
automatically initiate an evaluation upon receiving a request for an
import permit or upon becoming aware that plant explorers want to
import small quantities of a taxon.
Several commenters stated that members of the public should be
allowed to suggest that species be added to the NAPPRA category. Some
commenters asked that we accept recommendations from specific groups of
people, including ecologists who study invasive plant species,
scientists in general, and local natural resource managers. One
commenter stated that we should allow the public to suggest species to
add to the NAPPRA category in the absence of an immediate importation
request, since local weed management areas and invasive plant councils
may elect to prevent movement of species that they expect will be
problematic into their areas.
We agree with these commenters that the public should be allowed to
suggest species to be evaluated for addition to the NAPPRA category. To
facilitate public input, we have established an e-mail drop box on our
plants for planting Web site, http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37_nappra.shtml, that will allow the public to
submit taxa for evaluation. We will also accept suggestions that are
mailed to APHIS at Risk Management and Plants for Planting Policy,
ATTN: NAPPRA List Candidates, RPM, PPQ, APHIS, 4700 River Road Unit
133, Riverdale, MD 20737-1236. (This address will also be available on
the plants for planting Web site.)
The Web site also recommends that members of the public who suggest
taxa to be evaluated for addition to the NAPPRA category include
certain information, if available, with their suggestion, to facilitate
evaluation of the taxon. The basic information we would need to
evaluate a taxon is the taxon's scientific name and author and its
common name(s). If the taxon was to be evaluated to determine whether
it is a host of a quarantine pest, the scientific name and author and
the common name(s) of the pest would also be necessary.
Beyond that, helpful information for a taxon to be evaluated as a
quarantine pest plant would include:
Whether the taxon is present in the United States, and if
so, where;
If the taxon is present in the United States, information
regarding any official control efforts,
The taxon's habitat suitability in the United States
(predicted ecological range);
Dispersal potential (biological characteristics associated
with invasiveness);

[[Page 31184]]

Potential economic impacts (e.g., potential to reduce crop
yields, lower commodity values, or cause loss of markets for U.S.
goods);
Potential environmental impacts (e.g., impacts on
ecosystem processes, natural community composition or structure, human
health, recreation patterns, property values, or use of chemicals to
control the taxon);
Potential pathways for the taxon's movement into and
within the United States; and
The likelihood of survival and spread of the taxon within
each pathway.
Helpful information for a taxon to be evaluated as a host of a
quarantine pest would include:
If the pest is a pathogen, whether it could be introduced
and established in the United States through the importation of seed or
other types of propagative material;
The pest's habitat suitability in the United States
(predicted ecological range);
Whether the pest is present in the United States, and if
so, where;
If the pest is present in the United States, information
regarding any official control efforts,
Means by which the pest infests plants;
The host range of the pest;
The plant parts the pest infests;
Potential economic impacts (e.g., potential to reduce crop
yields, lower commodity values, or cause loss of markets for U.S.
goods);
Potential environmental impacts (e.g., impacts on
ecosystem processes, natural community composition or structure, human
health, recreation patterns, property values, or use of chemicals to
control the pest);
Other potential pathways for the pest's movement into and
within the United States; and
The likelihood of survival and spread of the pest within
each pathway.
For each type of suggestion, we would need references to support
any information supplied, and the contact information of the person who
made the suggestion, so we could follow up if necessary.

Information To Be Made Available on the Internet

Several commenters encouraged us to make various information and
documents from the NAPPRA process available on the Internet. One
commenter generally stated that making NAPPRA information available in
public media such as Web sites would help disseminate information and
could be used to encourage input from other stakeholders. Another
stated that we should make available documentation that includes the
justification for placing a plant in the NAPPRA category for every
item.
We agree with these commenters. We will provide public notice of
every determination we make that a plant taxon should be added to the
NAPPRA category, along with a data sheet that details the scientific
evidence that we evaluated in making our determination, including
references for that scientific evidence. The plants for planting Web
site mentioned earlier has a great deal of background information on
our regulation of plants for planting. We also make the Plants for
Planting Manual, which summarizes all of APHIS' prohibitions and
restrictions on the importation of plants for planting, available on
the Web at http://www.aphis.usda.gov/import_export/plants/manuals/online_manuals.shtml. (This manual was known as the Nursery Stock
Manual; its name has been changed to reflect the changes we are making
to the regulations in this final rule.)
In addition to the information available on the Internet, we
suggest that anyone interested in receiving notifications on NAPPRA-
related issues join the PPQ Stakeholder Registry, at https://web01.aphis.usda.gov/PPQStakeWeb2.nsf. People who sign up for the
Stakeholder Registry and select the category ``PI--Plants'' will
receive e-mail notifications whenever we publish a notice adding a
taxon to the NAPPRA category, as well as notifications regarding other
aspects of the plants for planting regulations. We encourage interested
parties to sign up for the Stakeholder Registry.
Specific types of information that commenters requested that we
make publicly available are addressed below.
Several commenters asked that we publicly disclose the taxa that we
evaluate for addition to the NAPPRA category and that we provide
details on all assessments completed, whether a taxon is added to the
NAPPRA category or not.
As discussed, we will publish notices in the Federal Register for
each taxon that we evaluate and determine to be a quarantine pest or a
host of a quarantine pest, meaning that publicly disclosing through
other means the fact that those taxa are being evaluated is
unnecessary. Similarly, when we determine that we should add a plant
taxon to the NAPPRA list, we will provide a data sheet that details the
scientific evidence we evaluated in making our determination. Thus,
public disclosure of evaluated taxa and the details of our evaluation
is part of the process for taxa that are evaluated and found to be
quarantine pests or hosts of quarantine pests.
Publicly listing taxa that have been evaluated for addition to the
NAPPRA category and found not to be quarantine pests or hosts of
quarantine pests, and providing details regarding those evaluations,
could create an incorrect impression that APHIS has conducted a
comprehensive evaluation of the risk posed by these taxa and found that
they can be safely imported under the general restrictions of the
plants for planting regulations. Rather, we would have evaluated as
little as one item of scientific evidence and found that it did not
indicate that the importation of the taxon poses a risk of introducing
a quarantine pest. Such evaluations are contingent on the data
available when the analysis is conducted. New scientific evidence might
lead us to add to the NAPPRA category a taxon that we had previously
evaluated and found not to be a NAPPRA candidate, which could create
public confusion if we had recorded our earlier evaluation on a Web
site and members of the public had interpreted that to mean that
importation of the taxon was safe. We would only make the statement
that a plant taxon's importation is safe after completion of a PRA in
order to comprehensively examine the risk associated with that taxon.
Listing taxa that we have evaluated and determined not to be hosts
of quarantine pests, in particular, would be cumbersome. Because a
single taxon of plants for planting can potentially be a host for
multiple plant pests, some of which may be quarantine pests, a list
showing which plants have been evaluated for various pests would
quickly become difficult both to update and to read. A list showing
that a taxon was evaluated as a host of several quarantine pests would
give an even stronger impression that APHIS had completed an overall
evaluation of the risk posed by the taxon, which would not be true
unless we had completed a PRA; in that case, the importation of the
taxon would be addressed through the rulemaking process, if necessary,
rather than through the NAPPRA process.
In addition, documenting our evaluation process and making the
details of our evaluations publicly available would be resource-
intensive. The evaluation of a taxon that we decide not to list could
consist of (for example) reading a report on a pest's damage overseas
and then finding that the pest is also present in the United States and
not under official control, meaning that it would not be a quarantine
pest and

[[Page 31185]]

thus not a candidate for addition to the NAPPRA category. Another
example would be noting the inclusion of a taxon on a State or local
weed list and then not finding any further references to substantiate
the damage it causes, or finding that the taxon is not under official
control. This process is somewhat fluid and not amenable to
documentation in the way that a comprehensive, systematic PRA is.
Documenting this process would also require resources that would be
better spent evaluating taxa of plants for planting to determine
whether they are NAPPRA candidates.
In addition, the list of taxa that could be evaluated for inclusion
in the NAPPRA category is enormous, particularly as we are explicitly
welcoming public suggestions for additions to the NAPPRA category. It
would take a great deal of resources to document our evaluations of
taxa that we determine are not NAPPRA candidates at a particular time.
For these reasons, we do not plan to make publicly available the
taxa that we evaluate and the details of our evaluations when those
evaluations do not result in a determination that the taxon should be
added to the NAPPRA category.
Five commenters asked that we provide a public timetable for
completion of evaluations. Four commenters stated that members of the
public should be guaranteed a timely response when submitting
suggestions for taxa to evaluate for the NAPPRA category.
We will respond to public suggestions to confirm that we have
received them. We will strive to complete all evaluations of taxa
identified as NAPPRA candidates in a timely manner. However, providing
a specific timetable for completion of evaluations would be difficult.
As discussed earlier, we are accepting public suggestions for NAPPRA
candidates. Our evaluation of those suggestions will be dependent to
some extent on the quality and quantity of scientific evidence
submitted by the public. In addition, the evaluation of any taxon may
take more or less time depending on the availability of scientific
information and whether any questions about the scientific information
need to be resolved.

Scientific Evidence To Be Used To Add Taxa to the NAPPRA Category

In the Background section of the proposed rule, we stated that we
planned to use scientific evidence to determine whether to add a taxon
of plants for planting to the NAPPRA category.
One commenter stated that taxa should be determined to be
quarantine pest plants only on the basis of scientific evidence, not
guessing or anecdotal evidence. One commenter asked generally whether
we would base our decisionmaking on more than one scientific source.
One commenter stated that data on invasiveness should be based upon
more than one source or data from more than one country, and those
countries should have corresponding climatic patterns in large regions
of the United States. One commenter recommended that reports from
professional societies be tested by means of a high scientific
standard.
It is important to note that we will not automatically determine
that a taxon should be added to the NAPPRA category simply because some
scientific evidence indicates that the taxon is a quarantine pest or a
host of a quarantine pest. In each individual case, we will evaluate
the evidence in order to ensure that it provides sound scientific
evidence that a taxon should be added to the NAPPRA category. In some
cases, we might consult multiple sources in an effort to determine
whether scientific evidence we have received is valid; for example,
when presented with an anecdotal report that a pest damages
agricultural or environmental resources, we would seek corroboration in
other scientific literature. However, some single sources of evidence
would be sufficient--for example, reports published in peer-reviewed
journals of a quarantine pest infesting a taxon of plants for planting
in field conditions.
With regard to taxa of plants for planting that are quarantine
pests, we would be certain to consider data from one source and one
country if the data were rigorous and published in a peer-reviewed
journal. We would not consider such data if they were obtained in a
climatic region that did not correspond to one of the climatic regions
in the United States, although it is worth noting that the United
States has a wide range of climate and ecological zones, including some
found only in Hawaii.
In general, with regard to the scientific evidence we would use to
determine that a taxon is a quarantine pest or a host of a quarantine
pest, it is important to remember that, for each taxon to be added to
NAPPRA, we will publish a notice in the Federal Register that makes
available a data sheet that details the scientific evidence that we
evaluated in making our determination, including references for that
scientific evidence. We will also solicit public comment on our
determination. Members of the public will have this opportunity to
comment on the scientific evidence we used. If comments present
information that leads us to determine that importation of the taxon
does not pose a risk of introducing a quarantine pest into the United
States, APHIS will not add the taxon to the NAPPRA list.

Scientific Evidence To Be Used To Make the Determination That a Taxon
of Plants for Planting Is a Quarantine Pest

In the proposed rule, we described several specific sources of
scientific evidence that we anticipate using to make the determination
that a taxon of plants for planting is a potential quarantine pest that
should be added to the NAPPRA list.
Three commenters recommended that we use a taxon's history of
invasiveness as evidence for placing a taxon on the NAPPRA list. One
commenter stated that, consistently, one of the best predictors of
invasiveness (weediness) has been invasiveness in other countries of
similar habitats. Although it is true that what is invasive in one
country is not guaranteed to invade another, this is an excellent
source of early warning. From reading the proposed rule, the commenter
stated, it was not clear whether this would carry much weight in
implying risk. The commenter encouraged us to use other countries'
lists of invaders as scientific evidence.
One commenter cited several studies supporting the assertion that
the invasiveness of a species anywhere outside its native range is the
most accurate predictor of likely invasion in a new range. The third
commenter stated that statistical analysis has shown that, if a species
has caused damage in one region it is more likely to cause damage in
another region than species not known to have caused damage.
A fourth commenter stated that the NAPPRA category should be
restricted to plants that have already demonstrated the capacity to
invade stable natural environments. The commenter stated that when the
habitats of native plants are eradicated by human intervention, even as
we do not expect the native plants to adapt to the radically changed
environment, neither should we expect a blank vacuum to remain.
It is important to mention again that the spread of a plant in a
new habitat, which is commonly characterized as ``invasiveness'' (or
``weediness''), would not be sufficient by itself to cause us to
determine that a plant is a quarantine pest; we would need evidence of
the potential economic importance of a taxon of plants for planting,
from the damage it has caused to agricultural and

[[Page 31186]]

environmental resources, in order to determine that it could qualify as
a quarantine pest.
Because of that, evidence of the damage a taxon of plants for
planting has caused in other habitats would be the best evidence for
determining that the taxon could be a quarantine pest for the United
States. Therefore, to the extent that they discuss damage caused by
plant taxa, we agree with the first three of these commenters. The
sources of information described in the proposal are intended to
provide us with evidence regarding taxa of plants for planting that
have caused damage in other areas and that would be potentially
economically important within the United States.
We also agree that evidence of damage caused in a relatively
undisturbed natural environment could carry more weight in determining
that a taxon is a quarantine pest than damage caused in previously
disturbed environments. However, we might consider the latter in the
absence of the former, depending on the details of the damage caused.
In addition, it is important to note that agricultural environments are
disturbed from their natural state, but if a taxon of plants for
planting causes damage to agricultural resources, it could be
designated as a quarantine pest.
In response to the first commenter, the proposed rule listed
national and international pest alerts, reports, and quarantine lists
among the sources of scientific evidence we would use in evaluating
taxa for addition to the NAPPRA category, and we still plan to use
those sources. We also listed as potential sources of scientific
evidence reports from regional plant protection organizations, such as
the North American Plant Protection Organization and the European and
Mediterranean Plant Protection Organization, and from professional
societies such as the Weed Science Society of America (WSSA).
Two commenters recommended that we use information from State and
local invasive species councils as scientific evidence. Another
commenter stated that each State has prominent native plant
organizations that may prove useful in providing information on various
imported plant taxa.
A fourth commenter stated that the standard of evidence used for
invasive plant species lists is apparently that ``someone, somewhere,
claims that the species is present outside its `natural' range.'' The
commenter stated that such lists are based entirely on anecdote and
that not one of the lists includes an objective definition of
``invasive'' or objective criteria for determining that a plant is
``invasive.'' The commenter stated that such lists include many species
that are actually endangered in their home ranges, calling into
question the accuracy of the designation of a plant on such a list as
invasive. The commenter also stated that invasive plant councils are
corrupted by herbicide industry representatives, funding, and
advertising. The commenter stated that such lists have no place in any
assessment of invasiveness.
We will evaluate each type of evidence we have available to us
regarding the potential a taxon has to become a quarantine pest in
order to ensure that it provides sound scientific evidence that a taxon
should be added to the NAPPRA category. We will certainly take into
account information from State and local invasive species councils and
from native plant organizations about the damage caused by various
taxa. At the same time, given such information, we would likely seek to
corroborate it with other scientific evidence describing the damage the
taxon causes before adding it to the NAPPRA category. (It is also worth
noting that many taxa of concern for those groups may not be under
official control and thus would not be considered quarantine pests.) If
a list of invasive plants includes a plant that is endangered in its
home range, that might indicate that the list was not very rigorous,
and we would likely conclude that it is not useful as a source for
information about potential quarantine pest plants.
On the other hand, if a list of plant taxa that could cause damage
of economic importance to the United States was constructed with
sufficient rigor, we would use it as a source of NAPPRA candidates. The
WSSA list is a good example.\11\
---------------------------------------------------------------------------

\11\ Parker, C., Caton, B.P., and Fowler, L. 2007. Ranking non-
indigenous weed species by their potential to invade the United
States: The Parker model. Weed Science 55:386-397.
---------------------------------------------------------------------------

In the proposed rule, we stated that we anticipate using published
international weed references as sources of scientific evidence to make
the determination that a taxon of plants for planting is a quarantine
pest. We cited two examples: Invasive Plant Species of the World: A
Reference Guide to Environmental Weeds (Weber, Ewald. 2003; CABI
Publishing, Cambridge, MA) and Noxious Weeds of Australia (W.T. Parsons
and E.G. Cuthbertson, 1992; Inkata Press, Melbourne and Sydney,
Australia).
One commenter stated that weed references are of notoriously poor
scientific quality and primarily based on anecdote; many species are
included on the basis of a single person's say-so. This commenter
stated that these lists are produced by persons with economic self-
interest in weed control and are padded with many species included
simply to create the impression of a large problem. The commenter
stated that, in these lists, there is no rigorous operational
definition of terms and no objective criteria for measuring
``weediness.'' The commenter also stated that in no case do these weed
lists give any consideration to the underlying causes of the weed
infestation; disturbance, poor agricultural practices, and
environmental degradation are most often the cause of ``infestation,''
yet these are ignored. For example, the commenter stated, one may
overgraze a meadow until the only species left is one that is
unpalatable to livestock, after which that species is classified as a
``weed.''
We will not add taxa of plants for planting to NAPPRA based on
whether they are perceived to be weeds, but based on their status as a
quarantine pest. This requires scientific evidence that the plants
could cause economically important harm to U.S. agricultural and
environmental resources, as well as requiring that the taxa are either
not present in the United States or present but under official control.
Whenever we would use any weed reference as a source of scientific
evidence, we would check the original references cited to substantiate
the claim and consider the circumstances in which the taxon caused
damage. If the reference was anecdotal, we would seek additional data
for corroboration before making a determination that a taxon is a
quarantine pest. As noted, evidence that a taxon causes damage in
relatively undisturbed natural environments could carry more weight
than evidence that a taxon causes damage in disturbed environments.
We also stated in the proposed rule that we anticipate using
scientific screening systems and predictive models, such as the WSSA's
prioritization model, that seek to identify weeds of global
significance that pose a threat to the United States, as sources of
scientific evidence to make the determination that a taxon of plants
for planting is a quarantine pest.
One commenter asked us to accept the Hawaii-Pacific Weed Risk
Assessment \12\ screening system as a legitimate source of evidence for
potential quarantine

[[Page 31187]]

pests. The commenter stated that this science-based tool has been used
successfully in Hawaii for evaluating potential invasiveness of alien
plant species for many years.
---------------------------------------------------------------------------

\12\ For more information about the Hawaii-Pacific Weed Risk
Assessment, go to http://www.botany.hawaii.edu/faculty/daehler/wra/.
---------------------------------------------------------------------------

We agree that the Hawaii-Pacific Weed Risk Assessment can serve as
a useful source of NAPPRA candidate taxa. In addition to considering
the invasiveness of a taxon, the system considers whether a taxon will
have ``significant ecological or economic impacts,'' and can thus help
identify quarantine pest plants. We will consider taxa that system
identifies as high risk in the same way we will consider taxa from
other screening systems.
A few commenters questioned the possibility of predicting whether a
plant taxon will be invasive in a new habitat.
Three commenters stated that there is no possible risk assessment
tool that can be developed to test plant invasiveness in every habitat
in every ecological region of the country. Under this rule, one of
these commenters stated, we would be without many major horticultural
crops, such as impatiens and lantana, because they would not pass a
screening exam. Another of these commenters stated that it is very easy
to predict that a species will not become a weed, and there are
numerous horticultural societies that devote large amounts of personal
time to discussing methods of cultivation and propagation of numerous
genera.
As discussed earlier in this document, we will not add plants to
NAPPRA solely because those plants are not in cultivation within the
United States. When we begin implementing the NAPPRA category by adding
taxa to it, the importation of most plants for planting will still be
subject only to the general requirements for a phytosanitary
certificate, a permit, and inspection at a plant inspection station. We
will only restrict the importation of a taxon when scientific evidence
indicates that the taxon is a quarantine pest or a host of a quarantine
pest. As noted, for quarantine pests, the primary evidence necessary to
make that determination for taxa not present in the United States would
be documentation of damage caused by the taxon. When we publish a
notice in the Federal Register announcing our determination that a
taxon of plants for planting is a quarantine pest, commenters will have
an opportunity to comment on the scientific evidence we used as a basis
for our determination.
It is not necessary for a model to determine whether a taxon of
plants for planting would be a quarantine pest in every area of the
United States in order for us to add that taxon to the NAPPRA category.
Evidence that the taxon would be a quarantine pest in one area would be
sufficient to take action to address the risk associated with the
taxon's importation. Any restrictions on movement within the United
States that could prevent the taxon from being a quarantine pest would
be addressed in the PRA conducted to remove the taxon from the NAPPRA
list.
One commenter provided a detailed examination of the potential
problems associated with predicting invasiveness using a model. The
commenter stated:
Modeling the natural environment is difficult, given our
limited knowledge about the species present in the world, the ecology
of these species, and how they interact.
The intrinsic properties of individual species are not
predictive, and adaptive evolution means that species change over time.
History of invasiveness is not useful as a predictor,
since some species that are invasive in one place are not invasive in
others, and the success of an invasion is dependent on extrinsic forces
as well as the intrinsic characteristics of a species.
Time lags between introduction and establishment or spread
make it difficult to establish how invasion has occurred, and the time
lag often obscures climatic or anthropogenic disturbances that enabled
the invasion.
Predictive models for assessing introduced species have
data problems; fail to factor in anthropogenic disturbance,
introduction effort, adequate lag time, and suitability of habitat; and
fail to operationally define ``invasion.''
The commenter stated that the use of models predicting invasiveness
to add taxa to the NAPPRA category will hamstring scientific research
and valuable conservation efforts.
As noted earlier, determining that a plant taxon is invasive is not
the same as determining whether it is a quarantine pest. The spread of
a plant in a new habitat, which is commonly characterized as
``invasiveness,'' would not be sufficient by itself to cause us to
determine that a plant is a quarantine pest; we would need evidence of
its potential economic importance, from the damage it has caused.
We agree with the commenter that uncertainty still exists regarding
whether a species that causes damage in one area will cause damage in
another. However, as demonstrated in the risk document, ``Foundation
Document Demonstrating the Risk Basis for Establishing the Regulatory
Category 'Not Authorized Pending Pest Risk Analysis' (NAPPRA)
Associated with the Importation of Plants for Planting,'' that
accompanied the proposed rule,\13\ the risk associated with the
importation of plants for planting is higher than that of other
articles whose importation is regulated by APHIS. Accordingly, we
proposed to implement the NAPPRA category as part of an effort to
provide a more appropriate level of protection against the risks
associated with the importation of plants for planting. Although the
level of risk associated with any individual plant taxon that has
demonstrated the ability to cause damage outside its native range may
be more or less uncertain, such plants are more likely to be quarantine
pests than plants that do not have such a history. Therefore, we will
use the NAPPRA category to prevent the importation of plants with a
history of damaging agricultural and environmental resources until a
PRA can be completed.
---------------------------------------------------------------------------

\13\ The foundation document is available on the Regulations.gov
Web site at the address listed in footnote 1.
---------------------------------------------------------------------------

It should be noted that the WSSA model that we plan to use
incorporates the damage done by the taxon in its evaluation.
Several commenters urged us to go further in our use of scientific
screening systems and predictive models and screen all taxa of plants
for planting imported into the United States for their damaging
characteristics. Some of these commenters stated that screening of all
unprecedented non-native taxa proposed for importation into the United
States should be USDA's responsibility and ultimate goal. Some
commenters stated that USDA should declare an explicit timetable for
implementation of a screening model. One commenter stated that, in the
long term, all new species imported to the U.S. should undergo a
screening process rather than just the NAPPRA-listed species. This
commenter stated that, as the vast majority of introduced species are
not invasive, this approach would safeguard U.S. resources with
negligible economic impacts.
Many of these commenters mentioned the Australian weed risk
assessment (AWRA) system as a model. This system starts from a baseline
of prohibiting importation of plants for planting. Plants for planting
are rated via a scoring system based on the characteristics of the
plants. Importation is allowed if the AWRA system shows the taxa to be
safe to import, and prohibited if the AWRA system indicates that they
should be rejected. The AWRA can also result in a rating of
``evaluate,'' in which case further

[[Page 31188]]

evaluation must be conducted before importation may be allowed.
Another commenter supported the use of the WSSA system to identify
noxious weed threats, but noted that the proposed rule referred to
various weed screening systems used for various purposes. This
commenter asked that APHIS clarify that the NAPPRA proposal does not,
and is not intended to, establish mandatory pre-importation screening
for weediness. The commenter also recommended that APHIS clarify that,
while APHIS may consider information presented as a result of screening
or prioritization models developed elsewhere for various purposes, the
NAPPRA rule does not constitute establishment of a weediness screening
methodology or a de facto acceptance of information resulting from
models developed and implemented elsewhere for various purposes.
The last commenter is correct. The plants for planting regulations
currently allow the importation of all taxa of plants for planting
subject to general restrictions, unless specifically restricted or
prohibited. We did not propose to change this. Rather, the NAPPRA
category will allow us to restrict the importation of plants for
planting that are quarantine pests or hosts of quarantine pests in a
timely manner. We plan to use the information from the WSSA screening
system to identify taxa for evaluation as quarantine pests, not to
determine which taxa are safe to import and to exclude all other taxa
from importation.
The AWRA proceeds from the Australian regulatory system, under
which all importation of plants for planting is prohibited unless
specifically authorized. Thus, it is not directly applicable to the
U.S. regulatory situation.
Some commenters stated that there is a full WRA approach under
development by the Plant Epidemiology and Risk Analysis Laboratory of
PPQ's Center for Plant Health Science and Technology. The commenters
stated that this approach is based on the AWRA and is being compared
for accuracy against that standard. As long as the methodology
developed is as or more accurate than the Australian methodology, the
commenters expressed support for the use of this system to determine
whether species placed in the NAPPRA category will be rejected and
placed on the noxious weed list or permitted for import (possibly with
conditions), assuming that the tool is consistently applied under the
conditions that generated the accuracy assessment.
The commenters are correct that we are developing a new WRA
methodology. The new methodology is based on the style and general
approach of the AWRA, but the structure of the assessment and the means
used to evaluate risk are not based on those in the AWRA. The new
methodology also takes into account lessons learned from other systems
like the one in use in New Zealand and the Hawaii-Pacific Weed Risk
Assessment tool mentioned earlier.
It is also important to clarify that we do not plan to employ our
WRA methodology in the same way Australia does; as the commenters
describe, the WRA methodology we are developing would initially be used
to determine whether taxa that have been added to the NAPPRA list can
be imported safely, or whether they need to be added to the list of
noxious weeds in 7 CFR part 360. (If the WRA performed on a taxon of
plants for planting that was added to the NAPPRA category as quarantine
pests determines that it does not need to be added to the noxious weed
list, we would conduct a PRA to determine whether there are any
quarantine pests for which it could serve as a host.)
When we have finished our development work on this new WRA
methodology, we plan to have the methodology published in a peer-
reviewed journal, taking into account the opinions of the peer
reviewers. We will make the methodology available to interested parties
as well.
One commenter stated that, in developing and applying the risk
analysis, it is critical that a lack of evidence of risk is not
interpreted as evidence of a lack of risk. In other words, the
commenter stated, if not enough is known to evaluate the answers to
several of the risk analysis questions, the default assumption should
be that the risk exists in this taxon. The Australian and some other
assessment systems have this built in by requiring a minimum number of
questions be answered for an assessment to be valid. If the default
assumption in the absence of evidence is that a species does not
possess the risk trait in question, a serious problem will result. This
would perversely encourage the importation of the species about which
we know the least and are the least prepared to evaluate and respond to
the risks. The commenter stated that if the default is to assume safety
(as is the current case in what the commenter characterized as the lax
regulatory environment), it creates incentives for plant importers to
seek out species that are too little known to be properly evaluated and
the risk to the stakeholders is not abated by these rules.
By ``the risk analysis,'' we assume the commenter means the new WRA
methodology we are developing. (The current WRA guidelines do not have
a series of questions, but rather assess various aspects of a plant
taxon's potential impact in the United States.) If this assumption is
correct, we will take the commenter's advice into account as we develop
our new WRA methodology. If we determine that we do not have enough
evidence to assess certain characteristics of a taxon, that would
factor into the uncertainty of the results of the WRA; high levels of
uncertainty would likely result in keeping a taxon on the NAPPRA list.
In the proposed rule, we stated that we would consider using other
work that is being done in the area of scientific screening systems and
predictive models as scientific evidence in determining whether a taxon
of plants for planting is a quarantine pest. We mentioned that several
university scientists are also studying invasiveness prediction, and
some have published articles on various models. In a footnote, we cited
``Predicting Invasions of Woody Plants in North America'' (Reichard and
Hamilton, 1997) \14\ as an example.
---------------------------------------------------------------------------

\14\ Reichard, S.H., and Hamilton, W.H. 1997. Predicting
invasions of woody plants introduced into North America.
Conservation Biology 11:193-203.
---------------------------------------------------------------------------

One commenter stated that the method described in Reichard and
Hamilton (1997) yields an unacceptable rate of false positives and
considers mere establishment to be ``invasion.''
We cited the article in question as an example of work being done
in the area, in the context of stating that we would consider using
other scientific screening systems and predictive models. The
commenter's concerns provide useful information in determining whether
and how to use the results of the method presented in Reichard and
Hamilton (1997), and we will consider it as we implement the NAPPRA
category.
The risk document that accompanied the proposed rule analyzed
current trends in the importation of plants for planting and the
general risks associated with plants for planting. In this document,
Appendix 3 listed imported plants that are invasive in the United
States.
One commenter expressed concern regarding this list, indicating
that it should not be representative of the level of stringency to be
applied to criteria for inclusion in the NAPPRA category. The commenter
stated that Appendix 3

[[Page 31189]]

appears to be a careless compilation of wish lists from organizational
Web sites and unscientific agenda-pushers with far too much reliance on
anecdotal material. The commenter stated that Appendix 3 includes
plants that have merely escaped cultivation and occur only occasionally
in niches opened by human intervention. The commenter stated that
Appendix 3 also contains plants that are included in the APHIS Nursery
Stock Manual for plant imports, indicating that they are either not
already present here or present and not being controlled, and therefore
are not invasive in the United States.
We did not intend the list in Appendix 3 to be read as a list of
taxa that would potentially be added to the NAPPRA list. The list was
simply one piece of evidence illustrating the potential damage
associated with the pathway of imported plants for planting; it was
intended to be taken in the context of assessing the overall risk
associated with the pathway, which was the goal of the foundation
document. We would need to verify that the damage a taxon causes is
economically important and that the plant taxon is either not present
in or under official control within the United States before we would
add a taxon to the NAPPRA category.

Scientific Evidence To Be Used To Make the Determination That a Taxon
of Plants for Planting Is a Host of a Quarantine Pest

We stated in the proposed rule that, in order to determine that a
taxon of plants for planting is a potential host of a quarantine pest,
the following criteria would need to be fulfilled:
1. The plant pest in question would have to be determined to be a
quarantine pest, according to the definition of quarantine pest that we
are proposing to add to the regulations; and
2. The taxon of plants for planting would have to be determined to
be a potential host of that quarantine pest. However, reports of the
host status of a taxon of plants for planting that are based on the
taxon's role as a laboratory or experimental host may be discounted if
we determine that they are not relevant to the actual conditions under
which the taxon would be grown and imported.
One commenter stated that the phrase ``potential host of a
quarantine pest'' is vague and overly broad, stating that virtually any
plant could be included.
The phrase ``potential host of a quarantine pest'' was intended to
indicate that we have not conducted a comprehensive PRA reviewing the
available evidence regarding the risk associated with a taxon of plants
for planting, but rather have acted on evidence indicating a risk.
However, we agree that the term ``potential host of a quarantine
pest,'' as well as the term ``potential quarantine pest,'' is
unnecessarily vague. The action we are taking in the NAPPRA category--
not authorizing the importation of taxa of plants for planting due to
the risk they pose--is commensurate with a determination that these
taxa are quarantine pests or hosts of quarantine pests; as the
commenter states, most plants are technically ``potential'' hosts of
quarantine pests. Therefore, we have changed the proposed regulatory
text to refer to determining that taxa are quarantine pests or hosts of
quarantine pests, rather than potential quarantine pests or potential
hosts of quarantine pests, and to refer to taxa that pose a risk rather
than to taxa that may pose a risk or pose a potential risk.
One commenter made several recommendations with regard to the
determination of host status. The commenter asked that we clarify, or
at least provide examples of, the conditions we consider to be relevant
versus those we consider not to be relevant to the actual conditions
under which the taxon would be grown and imported. The commenter stated
that these will not be simple questions to answer in practical terms.
For example, it seems evident that a pathogen known to be root-borne
but not to infect other portions of the plant would not pose a threat
if imports are limited to unrooted cuttings, but many pathogens are
poorly known, which makes it difficult to evaluate whether they are
truly limited to particular plant parts. The commenter stated that, in
the case of P. ramorum, knowledge of the plant parts infected has grown
slowly and often as the result of experience with nursery
infestations--that is, too late for effective prevention. The commenter
suggested that, at a minimum, we include in NAPPRA those laboratory
hosts that co-occur with natural hosts in areas suspected of harboring
the pathogen, including nurseries.
We consider laboratory conditions to be relevant if they are
similar in pest density and environmental conditions to the natural
conditions under which a taxon would be exposed to a pest. Often,
laboratory experiments to determine host status use excessive amounts
of inoculum or numbers of pests that a plant would rarely encounter in
natural conditions. Laboratory experiments sometimes also hold
environmental conditions at levels conducive to infection or
infestation for long periods of time in order to see whether infection
or infestation is theoretically possible, when those conditions would
not prevail for such a long time in nature. A taxon of plants for
planting that was shown to be a host in such conditions, or other
conditions that depart substantially from what could be expected to
occur in the conditions under which the taxon would be grown and
imported, would not be considered to be a host of a quarantine pest for
the purposes of the NAPPRA category.
The example of P. ramorum is an instructive one. If the NAPPRA
category had been available to us when initial scientific evidence was
being developed regarding P. ramorum, we would likely have added all
plant parts, except seed, of any host of P. ramorum to the NAPPRA
category, given the fact that Phytophthora spp. cause disease in stems,
roots, and leaves, depending on the infected plant species and their
inoculum, and given the fact that its inoculum is soil- and water-
borne, and possibly airborne. These facts indicate that P. ramorum
would infect host species in the natural environment. (It should be
noted that adding any plant to NAPPRA as a host of a quarantine pest
would prevent the importation of the entire plant, except seed, unless
seed is specified as not authorized.)
The commenter also asked about the level of proof that APHIS will
require in determining that a plant taxon is a ``natural'' host. Again
in the case of P. ramorum, APHIS initially insisted that Koch's
postulates be completed and accepted by the agency before recognizing a
plant taxon to be a host of that pathogen. This approach resulted in
continued movement of P. ramorum on hosts that had been identified by
symptoms or other methods but for which this often-difficult test had
not yet been completed. The commenter suggested that APHIS recognize
such suspected hosts, perhaps calling them ``associated'' hosts as it
does with P. ramorum; and include them in the NAPPRA category at least
until further study can clarify their relationship to the pathogen
under consideration.
Our intention is to recognize plant taxa as hosts if they are
observed and determined to be hosts in the environment in which they
are growing. The ``associated hosts'' listed in our domestic
regulations to prevent the spread of P. ramorum within the United
States (in 7 CFR 301.92-2) have not been confirmed as hosts through
completion of Koch's postulates, but they are all taxa that have been
observed and determined to be hosts of P. ramorum in the environment in
which they are growing. Therefore, we would add such taxa to the NAPPRA
category.

[[Page 31190]]

In general, we will not require confirmatory tests such as Koch's
postulates to be performed before adding a taxon to the NAPPRA category
as a host of a quarantine pest if the taxon has been observed to be a
host of a quarantine pathogen.
In the proposed rule, we also described several sources of
scientific evidence that we anticipated using to make the determination
that a taxon of plants for planting is a host of a quarantine pest that
should be added to the NAPPRA category.
One commenter encouraged us to use other countries' lists of pests
and pest hosts in this evaluation.
We agree with this commenter. In the proposed rule, we stated that
we would use national and international pest alerts, reports, and
quarantine lists as sources.
Another commenter, noting that we proposed to use national and
international pest alerts, reports, and quarantine lists as scientific
evidence, asked how such reports will be substantiated prior to adding
plant taxa to the NAPPRA list. The commenter also asked whether the
foreign country that is implicated will be notified by the USDA and
given an opportunity to verify a report before a plant taxon is added
to the NAPPRA list.
If we receive a report of pest presence from a foreign NPPO, we
would consider that report to be sufficient to add a taxon to the
NAPPRA list, assuming the pest met the criteria for being designated as
a quarantine pest. If the report came from another source, we would
check on who made the report, who reviewed the report, and the data
underlying the report before making a determination on whether to add a
taxon to the NAPPRA list. We would reserve the option to contact the
affected country to get further information, but if the data provided
sufficient certainty, we would not need to do so. Affected countries,
like other interested parties, will have an opportunity to comment on
the notices we publish announcing our determination that a taxon is a
host of a quarantine pest.
This commenter also noted we proposed to use reports and quarantine
lists from State and local governments as sources. The commenter stated
that State and local governments are not required to meet international
standards for pest reporting and are not subject to the same level of
scrutiny as an NPPO.
We will use reports from State and local governments as data on
emerging quarantine pests; we will make the final determination with
regard to whether a pest is a quarantine pest. In making the final
determination, we will review the standards used to compile the report
or quarantine list and, if necessary, seek additional data for
corroboration of the damage the pest could cause and whether the pest
is under official control in the United States.
One commenter encouraged us to use information from State exotic
plant pest councils.
We agree with the commenter's recommendation. As with reports and
quarantine lists from State and local governments, we would use them as
potential sources of information on potentially damaging pests.
However, as with other such sources of evidence, we would likely seek
additional data for corroboration of the damage the pest could cause
and whether the pest is under official control in the United States.

General Level of Protection

We stated in the proposed rule that we were proposing to establish
the NAPPRA category in order to provide a more appropriate level of
phytosanitary protection against the introduction of quarantine pests
through the importation of plants for planting.
Several commenters asked that we articulate a general level of
protection against the risk of introduction of quarantine pests that we
would seek to achieve through use of the NAPPRA category. One commenter
also asked that we specify the level of uncertainty associated with
various levels of risk that would lead us to action. Another asked that
we make public our criteria for determining that the importation of a
taxon should be prohibited, allowed subject to special restrictions, or
allowed subject to general requirements, and that we take comment on
those criteria.
The ultimate standard by which we will evaluate taxa for addition
to the NAPPRA category is whether they are quarantine pests or hosts of
quarantine pests, based on the definition of quarantine pest that we
are adding to the regulations. We will evaluate each individual taxon
that comes to our attention to determine whether it meets this
criterion. The unique biological characteristics of each evaluated
taxon and, if applicable, the quarantine pests associated with it will
inform our decisions. Therefore, it is not possible for us to specify
an overall level of protection or general criteria that would apply to
all our decisionmaking.

Availability of Information Used as a Basis for Adding Taxa to the
NAPPRA Category

Along with publishing a notice in the Federal Register announcing
our determination that a plant taxon should be added to the NAPPRA
category, we proposed to make available a data sheet that would detail
the scientific evidence that we evaluated in making our determination,
including references for that scientific evidence.
Two commenters addressed the issue of the availability of the
scientific evidence detailed in the data sheet. One stated that all the
information used to make these decisions must be readily available to
anyone interested in evaluating it. The quality of the scientific
evidence that supports the inclusion of a species into the NAPPRA
category, and any other category restricting importation for that
matter, is critical. Unfortunately, in the commenter's experience, such
evidence is often flawed or incomplete. The commenter commended the use
of international databases and peer-reviewed articles but cautioned
that even these should be studied carefully; details should not be
omitted or simplified. Sometimes, the commenter noted, the information
comes from documents that are not readily accessible to the public
(e.g., in other languages, in restricted databases, etc.). The
commenter stated that being able to locate this information easily
should help maintain transparency in the process.
Another commenter stated that, in order for financial stakeholders,
such as nurseries, greenhouses, retailers, forestry operations, seed
exchanges, etc., to review and comment on the scientific evidence
regarding a quarantine pest plant placed in the NAPPRA category, they
must have access to the scientific evidence referred to in the data
sheet. The commenter stated that several problems arise when trying to
review evidence in academic journals. Academic journals are not free,
and it can be expensive to access paper copies or Web archives.
University libraries do not always have paper copies of a given journal
available for review, or complete collections of a given journal, and
sometimes interlibrary loan services are not available to allow access.
The commenter stated that without access to academic journals, any
academic journal evidence used to place a plant on the NAPPRA category
as a quarantine pest plant is effectively withheld from the public.
This commenter stated that electronic access to academic journals
should be granted to financial stakeholders in order to provide a
review and comment process that is fair and open to all parties. For
example, the USDA could provide free electronic access to

[[Page 31191]]

journals for use by financial stakeholders at its Web site.
The commenter further stated that access to electronic journals
should not be biased in any way toward only those journals which
emphasize the negative aspects of a plant but should also include those
which show positive aspects as well. For instance, journals which deal
with other aspects of plants besides their potential harm, such as
their use in food, medicinal, culinary, utilitarian, ethno-botanical,
fiber, bio-fuel, ornamental horticulture, bioremediation, species
preservation, and other contexts, should be made available to
stakeholders. The ready availability of such information, the commenter
stated, would ensure that some plants are not unduly labeled as plant
pests when in reality they may hold enormous beneficial gains for the
United States that outweigh their negative aspects.
We agree with the general principle that as much information as
possible regarding plants for planting should be freely available. Our
data sheets will provide specific citations so that members of the
public can review the evidence we use in making our determinations. We
agree with the first commenter that all evidence we use should be
reviewed carefully, and we will take all details of the evidence into
account. We will welcome comments on our interpretation of the
scientific evidence we use.
However, we will not be able to provide free access to all the
evidence we use in making the determination that a taxon of plants for
planting is a quarantine pest or a host of a quarantine pest. Many
journals (and many other sources of scientific evidence) have copyright
restrictions that make it illegal for us to simply post the documents
from which we draw evidence. In such cases, we will add taxa to the
NAPPRA lists based this scientific evidence, even though we cannot make
that evidence available. Not doing so, and thus allowing a risk of
introducing a quarantine pest into the United States to go unaddressed,
would be contrary to our mission to protect U.S. agricultural and
environmental resources from damage caused by quarantine pests.
We note that there are several factors that may mitigate this
burden. Most journals make abstracts of their articles freely available
on the Web. In addition, while a university may not have paper copies
of all relevant journals, most have access to electronic repositories
of journal information. Persons with access to a university library can
sometimes access these repositories from their homes.
Finally, it should be noted that we will evaluate taxa to determine
whether they should be added to the NAPPRA category based on whether
they are quarantine pests or hosts of quarantine pests, not based on
the benefits that may be gained by their importation. The purpose of
establishing the NAPPRA category is to allow us to respond more quickly
to evidence indicating that there is a risk associated with the
importation of specific taxa of plants for planting. Evaluating the
benefits of importing a taxon of plants for planting before adding it
to the NAPPRA list would make it difficult to respond to scientific
evidence in a timely manner, as it would require a comprehensive review
of the literature of the type described by the second commenter. If we
conduct a PRA and determine that it is appropriate to remove a taxon
from the NAPPRA category, we will consider the taxon's potential
benefits as part of any subsequent rulemaking to prohibit the
importation of the taxon, or to allow its importation subject to
restrictions.

Restrictions Within the United States

We proposed that plants for planting in the NAPPRA category would
not be authorized for importation into any part of the United States.
One commenter asked how we would handle a taxon of plants that
could be a weed in one part of the United States yet would not be
invasive in another part, thereby being a potentially valuable
ornamental plant.
We will use the NAPPRA category to prevent the importation of a
taxon of plants for planting when scientific evidence indicates that
the importation of that taxon poses a risk of introducing a quarantine
pest anywhere in the United States. The potential benefits of the
taxon, and any areas within the United States where the taxon would not
be a quarantine pest, would be addressed in any subsequent rulemaking
to remove the taxon from the NAPPRA list and prohibit its importation
or allow its importation subject to restrictions.
Three commenters specifically asked about how the NAPPRA category
would protect Hawaii. One commenter stated that Hawaii's location and
extreme geography combine to create a large variety of ecosystems not
found on the mainland United States. These ecosystems include many
species found nowhere else on earth, many of which are threatened or
endangered.
One commenter specifically stated that, in Hawaii, imported plants
for planting have driven many native species to extinction or
endangerment, leaving the State with the highest number of extinctions
and highest number of listings of endangered species among the 50
States. Two commenters stated that plants that do no harm in the rest
of the United States may have devastating effects in Hawaii, citing as
an example the fact that several species in the Melastomataceae family
have become severe pests in Hawaii's forests, requiring millions of
dollars annually in control costs, but do not cause problems in other
parts of the United States.
One of the commenters recommended that we take Hawaii's diverse
ecosystems into account in evaluating whether a taxon should be added
to the NAPPRA category.
Another commenter suggested that we develop a ``NAPPRA Hawaii''
category in which certain plants would not be authorized for
importation into Hawaii or for interstate movement from the mainland
United States based on the risk they pose to Hawaii's ecosystems and
agriculture. The commenter stated that APHIS' restrictions on the
interstate movement of fresh fruit and flowers from Hawaii to the
United States provide a precedent for such a category.
We plan to take Hawaii's unique circumstances into account when
evaluating taxa for addition to the NAPPRA category. A plant that would
be a quarantine pest in Hawaii, but might not be a quarantine pest
elsewhere in the United States, would be a candidate for addition to
the NAPPRA category. As discussed earlier, we would base any
determination to add such a plant to the NAPPRA category on scientific
evidence indicating that the plant was a quarantine pest, and we would
take public comment on our determination.
With regard to the second commenter's suggestion, while the
importation of plants that pose a threat to Hawaii will be not
authorized through the NAPPRA category, restricting the movement of
plants for planting within the United States is outside the scope of
the proposed rule. The primary means for regulating the interstate
movement of plants for planting that are quarantine pests is the
noxious weed regulations in 7 CFR part 360; any plant designated as a
noxious weed may be moved interstate only with a permit. The public is
free to petition APHIS to designate plants that may be quarantine pests
in Hawaii as noxious weeds; more information on the petition process is
available at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/index.shtml. The interstate movement of some nursery stock is
also restricted in our domestic quarantine programs in 7 CFR part 301.

[[Page 31192]]

We will consider the commenter's suggestion when we develop a
regulatory mechanism to restrict the interstate movement of plants and
plant products that are not harmful in the continental United States
but that could be harmful in Hawaii's unique environments.

Notifications

Several commenters addressed notifying the public when we publish
notices to add taxa to the NAPPRA category. One commenter stated that
PPQ must continue to involve both the private and public sectors in
evaluations. This commenter recommended that notifications on the PPQ
Web site be extremely timely and transparent for private industry and
State and local governmental agencies alike. Another commenter
recommended that PPQ also notify its established stakeholder registry
of proposals to add a plant to the NAPPRA list, or to remove a plant
based on completion of a risk analysis that demonstrates that the plant
can be imported safely. A third asked that every means be used to
ensure that members of the plant industry are well-informed to ensure
proper engagement from those directly affected.
We agree with these commenters. We will continue to involve all the
governmental agencies and groups mentioned by commenters, as well as
the rest of the general public, in the addition of taxa to the NAPPRA
category and in the revision of the plants for planting regulations in
general. We will link to the Federal Register notices that we publish
to add taxa to the NAPPRA category on our plants for planting Web site,
as well as any PRAs and rules published to remove taxa from the NAPPRA
category. We will also notify subscribers to the PPQ Stakeholder
Registry regarding actions related to the plants for planting
regulations.
One commenter, a representative of a foreign NPPO, asked how we
will provide notification of a proposed addition to the NAPPRA
category, e.g., through the WTO notification process or through another
mechanism.
When we publish a notice that is relevant to international trade in
the Federal Register, we always notify the WTO through the formal
notification process. We will continue to do this for NAPPRA-related
notices.

Importation of Taxa During Evaluation and During the Comment Period;
Restricting the Importation of Taxa That Have Already Been Imported
Into the United States

To add taxa to the NAPPRA category, we proposed to publish in the
Federal Register a notice announcing our determination that a taxon of
plants for planting is either a quarantine pest or a host of a
quarantine pest. This notice would make available a data sheet that
would detail the scientific evidence that we evaluated in making our
determination, including references for that scientific evidence. We
proposed to provide for a public comment period of a minimum of 60 days
on our proposed addition to the list and specify a proposed effective
date for the addition of the taxon to the NAPPRA category.
Proposed paragraph (b)(2) of Sec. 319.37-2a described how we
proposed to respond to comments on the notices. We proposed to issue a
notice after the close of the public comment period indicating that the
taxon will be added to the list of taxa not authorized for importation
pending pest risk analysis if:
No comments were received on the data sheet;
The comments on the data sheet revealed that no changes to
the data sheet were necessary; or
Changes to the data sheet were made in response to public
comments, but the changes did not affect our determination that the
taxon poses a potential risk of introducing a quarantine pest into the
United States.
If comments presented information that leads us to determine that
the taxon does not pose a potential risk of introducing a quarantine
pest into the United States, the proposed rule stated that APHIS would
not add the taxon to the NAPPRA list. We proposed to issue a notice
giving public notice of this determination after the close of the
comment period.
Four commenters stated that we should prevent the importation of
taxa of plants for planting that are under consideration for addition
to the NAPPRA category.
Several commenters stated that importation of any taxon considered
for addition to the NAPPRA category should be prohibited during the 60-
day public comment period and subsequently until we publish the notice
announcing a final decision regarding whether to add the taxon to the
NAPPRA category.
One commenter recommended that we prohibit the importation of
plants for planting at the time the notice is published, or earlier if
possible. In the absence of clear language indicating their status, the
commenter assumed that APHIS will continue to allow importation until
rulemaking is completed that adds these species to the NAPPRA category.
The commenter stated that this seems unwise and continues to subject
the United States to unnecessary risk of pest introduction and
potential harm from establishment. After all, the commenter asked, if
the agency has scientific evidence indicating potential harm, why
continue to let unrestricted importation while the rulemaking process
proceeds for several months? Without the authority to suspend
importation of suspect species as soon as APHIS obtains credible
scientific evidence, the commenter stated, the United States will be
subjected to months, perhaps years, of unnecessary risk awaiting the
initiation and conclusion of rulemaking.
One commenter expressed support for continued opportunities for
stakeholder and public input during the comment period.
We appreciate the opportunity to clarify this aspect of how the
NAPPRA process will work. When we find evidence that the importation of
plants for planting that are currently being imported poses a risk of
introducing a quarantine pest, we stop their importation through the
issuance of a Federal import quarantine order, also referred to as a
Federal order.
An example of a Federal order used to restrict the importation of
plants for planting is our Federal order prohibiting the importation of
citrus seed from certain countries to prevent the introduction of
citrus greening (Huanglongbing disease of citrus) and citrus variegated
chlorosis. This Federal order was effective January 29, 2008, and was
superseded by an interim rule published in the Federal Register and
effective on April 6, 2010 (75 FR 17289-17295, Docket No. APHIS-2008-
0052). The Federal order can be viewed at http://www.aphis.usda.gov/import_export/plants/plant_imports/federal_order/downloads/hlb_cvc.pdf.
After this final rule becomes effective, if a taxon of plants for
planting is currently being imported and we determine that the taxon
should be added to the NAPPRA category because it is a host of a
quarantine pest, we will issue a Federal order to stop its importation.
We will also publish a notice announcing our determination that the
taxon is a host of a quarantine pest and making available a data sheet
that details the scientific evidence that we evaluated in making our
determination, including references for that scientific evidence. We
will solicit

[[Page 31193]]

comments from the public. If comments present information that leads us
to determine that the importation of the taxon does not pose a risk of
introducing a quarantine pest into the United States, APHIS would
rescind the Federal order and not add the taxon to the NAPPRA list.
For example, if this final rule had been effective when we
determined that we needed to prevent the importation of citrus seed
from countries where citrus greening and citrus variegated chlorosis
are present, we would have issued a Federal order and prepared a data
sheet summarizing the scientific evidence that led us to make the
determination that citrus seed from those countries is a host of a
quarantine pest. We would then have published a notice in the Federal
Register announcing our determination that such seed is a host of a
quarantine pest and giving the public an opportunity to comment.
Because the process for publishing a notice is simpler and less time-
consuming than the process for publishing an interim rule, the NAPPRA
process would likely have allowed for earlier public input on the risk
posed by the importation of citrus seed from countries where citrus
greening or citrus variegated chlorosis exists. Meanwhile, the Federal
order would have continued to protect the United States from the risk
associated with the importation of citrus seed from those countries
while we evaluated the public comments we received and determined
whether to confirm the addition of the taxon to the NAPPRA category.
(If we determined, based on evidence submitted by commenters, that we
should not add the taxon to the NAPPRA category, we would rescind the
Federal order.)
An example of a Federal order used to stop the importation of a
taxon of plants for planting that is a quarantine pest is the Federal
order prohibiting the importation of Lygodium microphyllum and L.
flexuosum. This Federal order was effective May 30, 2008, and was
superseded by an interim rule published in the Federal Register and
effective on October 19, 2009 (74 FR 53397-53400, Docket No. APHIS-
2008-0097) that added these two species to the noxious weed list in 7
CFR part 360. The Federal order can be viewed at http://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/federalorder-lygodiums.pdf.
We published a Federal order to stop the importation of those
Lygodium species because we became aware of commercial interest in
importing L. microphyllum, at the same time that the State of Florida
requested that we restrict the importation of both species to support
its official control efforts. We do not anticipate that we will often
issue Federal orders preventing the importation of taxa of plants for
planting that are quarantine pests. If taxa of plants for planting have
been or are being imported into the United States, they are present in
the United States and thus not eligible for designation as quarantine
pests unless they are under official control, as L. microphyllum was.
We will continue to authorize the importation of taxa of plants for
planting if they are being considered for NAPPRA. If we have not yet
made a determination that the importation of a taxon poses a risk of
introducing a quarantine pest, we would not have a solid reason to
prevent its importation.
In this final rule, we are not including the provision that we will
specify a proposed effective date for the addition of the taxon to the
NAPPRA category; our ability to use a Federal order to impose import
restrictions immediately, if appropriate, makes this provision
unnecessary.
If we do not use a Federal order to enforce restrictions on the
importation of a taxon immediately, and the comments we receive on the
initial notice do not cause us to change our determination that the
taxon should be added to the NAPPRA category, the taxon will be added
to the NAPPRA category when we publish the notice after the comment
period confirming the taxon's addition.
With respect to the concerns one commenter expressed about the
length of the rulemaking process, the process of adding taxa to the
NAPPRA lists, which involves publishing Federal Register notices
supported by data sheets, is expected to be more timely than the
current process, which typically involves proposed rules and final
rules supported by a comprehensive PRA. A similar process has resulted
in much-expedited approval for authorizing the importation of fruits
and vegetables under the regulations in Sec. 319.56-4, and we expect
that the NAPPRA process will work in a similarly expedited fashion to
address the risk associated with specific taxa of plants for planting.
Three commenters stated that the proposed NAPPRA category would
allow APHIS to take action not only when evidence indicates that a
taxon of plants for planting is a quarantine pest or a host of a
quarantine pest, but also when conditions under which imported plants
are produced have changed in ways that make those plants pose a higher
pest risk. The commenters stated that such situations may include:
Plants are being imported from new sources;
Plants are being produced using unexpected horticultural
methods that may pose additional risk (such as, being collected from
the wild rather than grown in a confined area); and
New pests are discovered in a production area.
The commenters are correct in stating that the NAPPRA category will
allow us to address the third situation. However, we will only add taxa
imported from a new source to the NAPPRA category if there is
scientific evidence that indicates that the importation of the taxon
from that new source poses a risk of introducing a quarantine pest.
This would normally be due to the presence of a quarantine pest for
which the taxon is a host in the new area of production. In the case of
the second situation, normally we would restrict the importation of a
taxon if a quarantine pest of that taxon is present in the area of
export, regardless of whether commercial production practices mitigated
the risk that the taxon would be infested by the quarantine pest.
Consideration of appropriate means to mitigate risk associated with a
quarantine pest is part of the PRA, not part of the evaluation process
for adding a taxon to the NAPPRA category.
Two commenters stated that a 6-month ``investigative period'' for
removal from the NAPPRA list or for a listing decision one way or
another, to ensure the rigor of the process, perhaps would make the
effort more amenable to small businesses or individual collectors and
growers.
We assume the commenters are referring to the comment period on the
notice announcing our determination that a taxon of plants for planting
is either a quarantine pest or a host of a quarantine pest or to the
comment period on any proposed rule we might publish following a PRA
conducted for a NAPPRA-listed taxon. In the past, we have found 60 days
to be an adequate period for soliciting comments. However, if members
of the public find that they need more time, they may request an
extension of the comment period to allow for more investigation on
their part.
One commenter asked whether APHIS would delay publication of
notices to amass a group of taxa to be added to the NAPPRA category or
would instead publish a notice every time an individual species comes
to the agency's attention. The commenter stated that, given current
resource allocations to the agency, it seems unlikely and cost-
inefficient to publish a notice to add species to NAPPRA every time a

[[Page 31194]]

deleterious species comes to the agency's attention.
We will publish notices whenever we determine that a taxon of
plants for planting is a quarantine pest or a host of a quarantine
pest. In some cases this would result in a group of taxa being added to
the NAPPRA category at once, as several taxa may be the subject of
determinations at one time. We will not delay publication of a notice
in order to include some minimum number of taxa in the notice.
Two commenters recommended that we not add taxa that are in trade
(i.e., currently being imported) to the NAPPRA lists unless or until
such action is justified based on a PRA. The commenters expressed
concern that adding taxa that are currently being imported to the
NAPPRA lists without first conducting a PRA would be economically
disruptive to companies importing these taxa and could even prompt
retaliatory reactions among trading partners.
Another commenter stated that taxa should be eligible for addition
to the NAPPRA list even if they are currently being imported; USDA
should not allow ``grandfathering'' in of a plant taxon (e.g.,
Rhododendron) if that plant has since proven to be a host of quarantine
pests or a quarantine pest itself.
One commenter asked how we would address emerging quarantine pests
for currently admissible taxa.
We appreciate that imposing restrictions on current trade causes
economic impacts on companies importing the affected taxa. However, we
agree with the second commenter; when scientific evidence indicates
that a taxon of plants for planting is a quarantine pest or a host of a
quarantine pest, we need to act promptly to prevent the importation of
that taxon, to protect U.S. agricultural and environmental resources.
It should be noted again that taking such actions is consistent with
our commitments under the WTO and IPPC; therefore, trading partners
should not take retaliatory action in response to restrictions placed
on the trade of plants for planting through the NAPPRA category.
Conducting a PRA on a taxon after the taxon has been added to the
NAPPRA list will allow us to consider all the evidence related to a
taxon (including all the quarantine pests for which it can serve as a
host), as well as any conditions under which the taxon can be imported
safely. However, promptly addressing the risk associated with
importation of a taxon that is a quarantine pest or a host of a
quarantine pest is essential to achieving a more appropriate level of
protection against the risk posed by the importation of plants for
planting.
For taxa that are hosts of quarantine pests and that have been
imported previously, there may be conditions under which the taxa could
be imported that would mitigate the risk associated with the quarantine
pest. In such a case, our Federal order could establish mitigations for
those countries exporting significant amounts, assuming the pest was
well-understood and appropriate mitigations were readily available.\15\
We would not authorize pending pest risk analysis the importation of
the taxon from countries that are currently not exporting the taxon to
the United States and in which the quarantine pest is present. We would
follow this action with a Federal Register notice announcing our
determination that the taxon is a host of a quarantine pest.
---------------------------------------------------------------------------

\15\ An example of a Federal order that provides such
mitigations is our Federal order to restrict the importation of
various taxa in order to prevent the introduction of Asian
longhorned beetle and citrus longhorned beetle. This order can be
found on the Internet at http://www.aphis.usda.gov/import_export/plants/plant_imports/federal_order/downloads/citrus_alb_2009_16_1.pdf.
---------------------------------------------------------------------------

In the summary of our initial regulatory flexibility analysis in
the Background section of the proposed rule, we stated that the
``NAPPRA regulations would initially list taxa of plants for planting
that, to our knowledge, have not yet been imported into the United
States but present a potential risk.''
One commenter stated that the word ``initially'' in the quote is
disturbing. The commenter asked whether this meant that APHIS may in
the future choose to include in the NAPPRA list other plants that are
already in the United States and whether APHIS may in the future choose
to include in the NAPPRA list other plants that do not present a risk.
The commenter also asked what assurance the public has that APHIS will
not in the future ``reinterpret'' this as giving APHIS the authority to
establish a list of taxa whose importation is authorized while
prohibiting the importation of all other taxa.
We appreciate the opportunity to clarify. As this discussion has
indicated, when necessary, we do plan to use the NAPPRA category to
restrict the importation of taxa of plants for planting that have
previously been imported into the United States; the quote in the
initial regulatory flexibility analysis was in error.
With regard to the commenter's other concerns, we will only add a
taxon of plants for planting that is already in the United States to
the NAPPRA category if scientific evidence indicates that it is a
quarantine pest (i.e., that it causes damage and is not present in the
United States or is present but under official control) or a host of a
quarantine pest. In addition, we will only add taxa to the NAPPRA list
based on scientific evidence, which we will detail in a data sheet that
we will make available to the public for comment. As the regulations
specify both of these points in detail--the NAPPRA category can be used
only for quarantine pests or hosts of quarantine pests, and we must
make a data sheet available that details the scientific evidence that
we evaluated in making our determination that a taxon of plants for
planting is a quarantine pest or a host of a quarantine pest, including
references for that scientific evidence--we would need to change the
regulations themselves in order to follow the hypothetical policy about
which the commenter is concerned. We are committed to following the
process set out in this final rule.
One commenter asked what procedure a prospective importer will have
to follow for taxa not currently being imported but not on a NAPPRA
list. The commenter assumed that such taxa will be allowed to be
imported under current APHIS protocols and procedures.
The commenter is correct. We did not propose any changes to the
general restrictions on the importation of plants for planting, and we
are not making any in this final rule.

Clarification of What Imports Are Not Authorized

Several commenters stated that we should clarify that the
importation of any number of propagules of taxa in the NAPPRA category,
not only imports of more than 12 propagules, are not authorized unless
otherwise determined through a PRA. One commenter noted that some
single releases are sufficient to cause significant harm, as
infestations by gypsy moth, Caulerpa taxifolia, and other plant pests
are believed to have arisen from single releases in the United States.
The commenters appear to be referring to the regulations in Sec.
319.37-3, which do not require an import permit for most lots of 12 or
fewer articles. However, the importation of any taxon in the NAPPRA
category is not authorized. We would not allow any importation of a
taxon listed in the NAPPRA category, regardless of the size of the lot
of articles intended for importation, subject to the general
restrictions of the plants for planting regulations; we would only
allow their importation under a Departmental

[[Page 31195]]

permit in accordance with Sec. 319.37-2(c).
Based on these comments, we reviewed the regulations to determine
whether any further clarification was necessary with regard to the fact
that the importation of articles in the NAPPRA category is not
authorized. While we did not determine that any changes to the permit
regulations are necessary, we did find one area that needs to be
clarified.
Paragraph (d) of Sec. 319.37-4 authorizes the importation of small
lots of seed without a phytosanitary certificate provided that the
shipment meets certain conditions. One of these conditions, found in
paragraph (d)(2), is that the seed is not of any prohibited genera
listed in Sec. 319.37-2; is not of any noxious weed species listed in
part 360; does not require an additional declaration on a phytosanitary
certificate in accordance with Sec. 319.37-5; does not require
treatment in accordance with Sec. 319.37-6; is not restricted under
the regulations in 7 CFR parts 330 and 340; and meets the requirements
of 7 CFR part 361. This requirement is intended to ensure that seed
imported under the small lots of seed program is free of quarantine
pests. As the importation of some seed will not be authorized under the
NAPPRA category, paragraph (d)(2) of Sec. 319.37-4 should indicate
that seed imported without a phytosanitary certificate under the small
lots of seed program must not be listed in the NAPPRA category in Sec.
319.37-2a. Accordingly, in this final rule, we are amending paragraph
(d)(2) of Sec. 319.37-4 to indicate that small lots of seed imported
under that paragraph must not be listed as not authorized for
importation pending pest risk analysis, as provided in Sec. 319.37-2a.

Process for Removing a Taxon From the NAPPRA Lists

In paragraph (e) of proposed Sec. 319.37-2a, we proposed to
provide that any person may request that APHIS remove a taxon from the
list of taxa whose importation is not authorized pending pest risk
analysis. We stated that we would encourage persons who submit such a
request to provide as much information as possible regarding the taxon
and, if the taxon is a potential host of a quarantine pest, any
quarantine pests that may be associated with it, as it is likely that
providing such information would allow us to complete a PRA more
promptly than we would otherwise be able to.
One commenter asked whether ``any person'' included foreign
governments or foreign exporters.
Several commenters stated that we should only allow requests for
PRAs for taxa listed in NAPPRA to come from an exporting country,
rather than from any person. These commenters stated that such an
approach would be consistent with the process of requesting PRAs for
the importation of fruits and vegetables and that such an approach
would allow APHIS to focus attention on PRAs for the highest-priority
taxa.
One commenter stated that the process to remove a taxon from the
NAPPRA list should be sensible and not out of reach, financially and
materially, for the common plant collector or small nursery owner.
We have determined that it is necessary to limit requests for PRAs
to remove taxa from the NAPPRA category to taxa for which the NPPOs of
exporting countries are willing to supply information. Although we will
allow any person (including common plant collectors and small nursery
owners) to make requests to conduct a PRA to remove a taxon from the
NAPPRA category, we will still need information from exporting NPPOs in
order to complete a PRA.
Accordingly, we are changing proposed paragraph (e) in Sec.
319.37-2a to indicate that requests to remove a taxon from the NAPPRA
list must be made in accordance with Sec. 319.5. This section, headed
``Requirements for submitting requests to change the regulations in 7
CFR part 319,'' allows anyone to submit a request to change the
regulations in 7 CFR part 319, but requires the submission of
information from an NPPO before a PRA will be prepared.
Section 319.5 requires the NPPO to submit various information that
only an NPPO could verify, including:
A description and/or map of the specific location(s) of
the areas in the exporting country where the plants, plant parts, or
plant products are produced;
Scientific name (including genus, species, and author
names) and taxonomic classification of arthropods, fungi, bacteria,
nematodes, virus, viroids, mollusks, phytoplasmas, spiroplasmas, etc.,
attacking the crop; and
Plant part attacked by each pest, pest life stages
associated with each plant part attacked, and location of pest (in, on,
or with commodity).
We need this information in order to evaluate all the pests that
could be associated with a taxon. While a plant taxon may be added to
the NAPPRA category based on evidence that it is a host of a quarantine
pest, there may be additional quarantine pests for which the taxon can
serve as a host, and it may also be a quarantine pest itself.
Similarly, a taxon that is added to the NAPPRA category as a quarantine
pest may itself also be a host of a quarantine pest. The PRA process
will examine all of these possibilities in determining whether there
exist conditions under which the taxon in question may be imported
safely.
We recognize that an NPPO with little interest in exporting the
taxon would likely consider providing such information to be a low
priority. We encourage importers who submit requests to remove a taxon
from the NAPPRA category to work with foreign NPPOs in determining
whether to submit a request. Although we recognize that requiring the
involvement of a foreign NPPO may make it difficult to prepare a PRA
for some taxa that we add to the NAPPRA list, we have no other way to
obtain and verify the information we will need to conduct the PRA. In
addition, if the PRA finds that the importation of the taxon can be
allowed subject to certain restrictions, the NPPO would need to be
involved in order to monitor and certify that producers were complying
with the restrictions.
One commenter recommended that we encourage persons who request
that we prepare a PRA to provide any relevant information regarding how
the taxon is grown and potential safeguards that may mitigate any risk,
and recommended that we take such practices into full account in our
decisionmaking.
The regulations in Sec. 319.5 require the submission of such
information by the foreign NPPO. Accordingly, the change discussed
earlier addresses this comment.
Once a request has been submitted to remove a taxon of plants for
planting from one of the NAPPRA lists, we proposed to conduct a PRA to
determine the risk associated with the importation of that taxon. Upon
completion of the PRA, we proposed to determine whether the importation
of the taxon should be prohibited; allowed subject to special
restrictions, such as a systems approach, treatment, or postentry
quarantine; or allowed subject to the general requirements of the
plants for planting regulations. We stated that we would then conduct
rulemaking accordingly.
One commenter asked whether there are any fees associated with
making a request to remove a taxon from the NAPPRA list.
There are no fees charged for such requests.
Five commenters asked us to provide a timetable for completion of a
PRA once a request has been submitted to

[[Page 31196]]

remove a taxon from the NAPPRA list. Four commenters stated that we
should complete PRAs in a timely manner. One of these commenters stated
that, ideally, PRAs should be completed in no more than 1 to 2 years.
One commenter stated that the proposed new category may create serious
barriers to trade, in particular if the procedure for conducting a PRA
is heavy and the capacity to deal with the issue limited.
We strive to complete all PRAs in a timely manner. However, the
length of time it takes to complete a PRA is dependent on several
factors, some of which are not in APHIS' control:
The availability of data on the taxon;
The timeliness with which the foreign NPPO responds to our
requests for information; and
Competition for APHIS' limited resources available for
developing PRAs.
These factors mean that we cannot provide a timetable for
preparation of a PRA in response to a request to remove a taxon from
the NAPPRA category. However, if a foreign country wishes to be able to
conduct trade in a taxon with the United States, we would expect that
its NPPO would provide information to APHIS in a timely manner, thus
helping to reduce any barriers to trade imposed by the PRA process.
One commenter stated that seeking to complete a PRA in a timely
manner will likely lead to situations when a determination is required
in the absence of adequate information. In these cases, the commenter
recommended that we be cautious in our decisionmaking. The commenter
also recommended that we require the importing firm to prepare an
economic environmental impact statement that considers the possible
economic and environmental impacts of the proposed importation.
Once a plant taxon has been added to the NAPPRA category, its
importation is no longer authorized, meaning that we can wait for data
necessary to complete a PRA to become available, if necessary, without
endangering U.S. agricultural and environmental resources.
At this point, only APHIS prepares environmental documents for
proposed importations under the National Environmental Policy Act of
1969, as amended (42 U.S.C. 4321 et seq.), and only APHIS conducts
economic analyses of the potential costs and benefits of allowing the
importation of a taxon. We may consider allowing petitioners to fund
the preparation of environmental documents in the future.
One commenter, noting that the proposed rule stated that it has
been a challenge for us to follow up on the available scientific
evidence by initiating PRAs, questioned whether we would be able to
adequately handle the tasks of data sheet and PRA preparation that are
associated with the NAPPRA category.
We expect that we will be able to prepare data sheets in response
to evidence that a plant taxon is a quarantine pest or a host of a
quarantine pest much more quickly than PRAs, as data sheets do not
require a comprehensive examination of the available information about
a taxon. As discussed earlier, challenges remain in completing PRAs,
although we strive to complete them as quickly as possible. However,
implementing this final rule will allow us to address risk associated
with the importation of plants for planting much more quickly than we
were able to when we used a comprehensive PRAs as the basis for
imposing restrictions on the importation of taxa of plants for
planting.
Several commenters requested that we provide links to PRAs
conducted on taxa that we have added to the NAPPRA category.
We will include those PRAs as part of the rulemaking docket on
Regulations.gov (http://www.regulations.gov) when we conduct rulemaking
based on the conclusions of the PRAs. In addition, interested parties
can sign up for the PPQ Stakeholder Registry to receive e-mail
notification when we make a PRA on a taxon listed in NAPPRA publicly
available.
One commenter, a representative of a seed industry organization,
stated that basing importations of plants and seeds for planting on
PRAs and formal rulemaking procedures will likely result in lengthy
timeframes for decisionmaking by APHIS unless proper procedures are
established and adequate resources are devoted to implement the
proposed rule. The commenter stated that the same problems and
constraints currently being experienced by APHIS in authorizing the
importation of fruits and vegetables could easily occur with plants for
planting once this rule becomes effective. The commenter stated that
the seed industry fears that the capacity for APHIS to conduct
additional PRAs will not be adequate; disagreements over pest lists (in
particular for the hosts of quarantine pests) will cause delays; and
PRAs and needs for rulemaking may not receive fair consideration for
proper priority in a system already severely clogged with backlogs and
high-priority trade agendas.
The commenter recommended that APHIS address the resource issues
and priority-setting processes that will be necessary for the effective
administration of this rule. In addition, to avoid unnecessary formal
notice-and-comment rulemaking, the commenter recommended that APHIS
develop and implement a procedure for issuing permits rather than
developing formal rules for taxa for which the risk can be managed
using mitigations that have already been approved for similar purposes.
This approach is now in use in the fruits and vegetables regulations
for low-risk commodities in which risk can be appropriately reduced
with measures that have already been approved for the same pest(s).
Under this approach, if the PRA determines that approved risk
mitigation measures will adequately reduce the risk, APHIS would
publish a notice in the Federal Register that it will issue a permit
rather than go through formal notice-and-comment rulemaking. The
commenter stated that this approach would reduce the decisionmaking
process from 1 to 2 years down to 6 months or less.
It should be noted again that the importation of most plants for
planting will not be affected by the implementation of the NAPPRA
category, which will only list specific taxa as quarantine pests or
hosts of quarantine pests, based on scientific evidence.
As noted earlier, the timetable for completion of a PRA depends on
many factors, some of which are outside APHIS' control. However, it is
important to note that continuing to allow the entry of taxa that are
quarantine pests or hosts of quarantine pests would expose the
agricultural and environmental resources of the United States to
continued risk while a PRA is developed. Adding such taxa to the NAPPRA
category provides a more appropriate balance between managing risk and
allowing trade.
We agree with the commenter's suggestion to develop a streamlined
approach to mitigate the risk associated with taxa listed as NAPPRA and
to authorize their importation. We plan to propose such an approach in
the future. This is further discussed later in this document under the
heading ``Risk-Mitigating Production Practices.'' However, such a
streamlined approach will not necessarily affect the amount of time it
takes to conduct a PRA, but rather the amount of time it takes to
authorize importation of a taxon under certain conditions once a PRA
has been completed.
One commenter stated that we should consider waiving the
requirement to conduct a PRA if the agency has determined that clear
scientific evidence exists to counter the earlier

[[Page 31197]]

evidence that supported listing the taxon, without proceeding through
the full PRA process.
We would not remove a taxon from the NAPPRA category simply because
some scientific evidence exists that indicates that the importation of
a taxon may be safe. The NAPPRA category is designed to allow us to
quickly address risk; the PRA process is designed to take into account
all the evidence regarding the risk associated with the importation of
a particular taxon. That said, if we receive information indicating
that the evidence we used to place a taxon on the NAPPRA list was in
error (for example, involving a taxonomic misidentification), we would
remove the taxon from the NAPPRA list.
To accommodate such removals, we are adding to the proposed
regulations in Sec. 319.37-2a a new paragraph (e)(4). This paragraph
indicates that APHIS may also remove a taxon from the NAPPRA list when
APHIS determines that the evidence used to add the taxon to the list
was erroneous. We are giving the example of a taxonomic
misidentification to ensure that the nature of the error is clear to
readers of the regulations--the error would need to be a clear error,
and not simply a disputable data point in the original evidence.
One commenter stated that any rule regarding the prohibition or
restriction of a species should not be considered ``final,'' and, as
long as new information becomes available, there should be room to
continue the process of refining any list. Another commenter stated
that, because relevant information about a taxon that we add to the
NAPPRA category may arise after the comment period on the initial
Federal Register notice has closed, we should devise a mechanism to
acquire and post comments in perpetuity.
We agree that the public should have a means to send us additional
information about any taxon that we have added to the NAPPRA category.
We will provide an e-mail address for submitting such information on
the plants for planting Web site at http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37_nappra.shtml. Any comments on the
scientific information made available in the initial Federal Register
notice would be helpful in preparing any subsequent PRA we may conduct.
It is important to note, however, that unless the scientific evidence
on which we based our determination was shown to be in error, we would
need to conduct a PRA to remove a taxon from the NAPPRA category.

Importation of NAPPRA Taxa Under Departmental Permits

The regulations in paragraph (c) of Sec. 319.37-2 provide that
articles listed as prohibited articles in paragraphs (a) and (b) of
Sec. 319.37-2 may nevertheless be imported if they are imported under
a permit for prohibited articles, referred to in the regulations as a
Departmental permit. Such articles must be imported by the USDA for
experimental or scientific purposes and imported at the Plant Germplasm
Quarantine Center or at a plant inspection station and must be labeled
with the permit number. The permit must specify conditions for
importation that are adequate to prevent the introduction of plant
pests into the United States. These provisions allow for the
importation of small amounts of germplasm free of quarantine pests,
because scientific and experimental research must be done on plants for
planting in order to understand their biology and develop effective
mitigation strategies for any risks their importation may pose.
To allow for the same research to be done on NAPPRA-listed plants
for planting, we proposed to amend Sec. 319.37-2(c) to indicate that
it would also apply to articles whose importation is not authorized
pending pest risk analysis, as listed in accordance with proposed Sec.
319.37-2a.
One commenter stated that small quantities of germplasm of NAPPRA-
listed taxa should be allowed for import with minimal pre-import
restrictions, though post-entry restrictions, utilizing a limited
quarantine period with demonstrated tests for major pathogens before
release for breeding, trialing, or commercialization, would be
practical. The commenter suggested that evaluation of NAPPRA-listed
taxa be performed by the companies wishing to import novel materials.
This process would be under the guidance of APHIS and would take place
in an environment with a minimal chance of escape.
Another commenter stated that a permit system should also encompass
taxon trialing for breeding and development, with the possibility of
eventual commercialization subject to appropriate review, limitations,
or safeguards. The commenter stated that this exception should apply to
USDA, as proposed, as well as to other permittees specifically approved
to import, for specific purposes, taxa on the NAPPRA lists.
This commenter also urged us to expedite review and finalization of
its Departmental permit revisions, which the commenter stated will form
an integral part of the overall implementation of the proposed NAPPRA
category.
Although allowing such importation is outside the scope of this
final rule, we do plan to publish a proposed rule that would revise the
Departmental permit provisions. This proposal would give us the
authority to allow private companies and individuals to import both
prohibited taxa and taxa whose importation is not authorized pending
pest risk analysis for analytical, experimental, therapeutic, or
developmental purposes, if the results of growth and testing of the
taxon in controlled conditions support doing so. We agree with the
second commenter that this revision is important to the implementation
of NAPPRA.
One commenter stated that, after testing of taxa that have already
been imported into the United States, plants should be exempted at the
species level, where appropriate, rather than at the cultivar level;
once a species has been tested and found to pose little risk of being
an invasive pest or harboring a quarantine pest, no further screening
is needed. Taxa already safely imported in significant commercial
quantities should be exempt from further screening. Botanical gardens,
universities, and private companies are all capable of screening. Such
screening should be modeled after post-entry quarantine conditions
developed to intercept pests. Part of the restriction imposed could
include a requirement to monitor for signs of invasiveness before wide-
scale commercial introduction could occur.
We will only restrict importation through the NAPPRA category of
taxa that are quarantine pests or hosts of quarantine pests; other
taxa, including those that have already been imported into the United
States, will continue to be subject only to the general importation
restrictions for plants for planting. Thus, taxa that are safely
imported in commercial quantities would not be added to the NAPPRA
category, unless new scientific evidence indicated that they are
quarantine pests or hosts of quarantine pests. Nevertheless, we will
take the commenter's advice about research into account as we develop
our revision of the Departmental permit regulations.
We are making one change related to importation under Departmental
permit in this final rule. In Sec. 319.37-2, paragraphs (a) and (b)
specifically indicate that the taxa listed there may not be imported
except in accordance with paragraph (c) of that section. To ensure that
readers of the NAPPRA regulations are aware that importation under
Departmental permit is an option

[[Page 31198]]

for NAPPRA taxa, we are changing the introductory text of proposed
paragraph (a) of Sec. 319.37-2a to indicate that importation of NAPPRA
taxa is not authorized pending the completion of a PRA, except as
provided in Sec. 319.37-2(c).

Seed

Some commenters specifically addressed seed-related issues.
One commenter requested that we not impose all-encompassing
restrictions on the importation of plants for planting, especially
seeds. The commenter stated that seeds are essential for preservation
of diversity within our agricultural systems, and that major companies
benefit from further restrictions on seeds.
The NAPPRA category will only be used to prevent the importation of
taxa of plants for planting that we determine to be quarantine pests or
hosts of quarantine pests, based on scientific evidence. The
importation of seed from taxa that are quarantine pests will not be
authorized under NAPPRA, as such importation could introduce a
quarantine pest. For taxa that are hosts of quarantine pests, the
importation of seed will be permitted unless specifically restricted by
APHIS based on scientific evidence that the associated pest can be
introduced and established in the United States through the importation
of seed. Even when a taxon is determined to be a host of a quarantine
pest, its seed can often be imported safely, depending on the biology
of the pest. As discussed earlier, preventing the importation of
quarantine pests will help to prevent damage to U.S. agricultural and
environmental resources.
One commenter, expecting that the largest impact of the NAPPRA
category will be on seeds that are a potential pathway for introduction
of plant pathogens, recommended that APHIS develop criteria to
objectively assess the risk of seeds as a pathway for introduction of
plant pathogens. The commenter stated that extreme care needs to be
taken in regard to what hosts of seed-transmitted pathogens are placed
on this list. Many plant pathogens, for example, have broad host
ranges; a pathogen might transmit through its principal hosts but not
through secondary hosts. The commenter stated that literature review
must be thorough and research results must be verified and reported in
additional papers in peer-reviewed journals to qualify to be listed as
hosts.
The commenter also stated that there are also many reports in the
scientific literature of seeds as vectors of certain pathogens, and
pathogen spores found as contaminants on seed; however, very little
analysis has occurred to assess the risk such seeds pose. Some reports
of seed transmission have been based on laboratory experiments and not
on actual field or environmental observations, or have documented seed
transmission at very low levels without commenting on the resultant
probabilities for inciting an infection in a new environment. Such
reports, once in the literature, are very difficult to refute or put
into proper context, and many NPPOs justify actions to prohibit or
severely restrict imports of seed based on these faulty or incomplete
scientific reports. The commenter concluded that careful analysis needs
to be done on the pathogen in question, its relationship to the seed
(is the seed a pathway), and under what conditions could there be
enough viable inoculum associated with seed to pose a risk of disease
expression and establishment.
The NAPPRA category is intended to allow us to respond in a timely
manner to scientific evidence indicating that a taxon of plants for
planting is (in this case) a host of a quarantine pest. We will use the
best information we have available to determine whether the importation
of seed from a taxon could result in the introduction and establishment
of a quarantine pest pathogen.
The Background section of the proposed rule stated that we would
not authorize the importation of certain seed based on evidence that
the quarantine pest is seedborne. In this document, we are clarifying
that evidence that the presence of a pathogen on or in seed would not
necessarily cause us to determine that the importation of that seed
should not be authorized pending pest risk analysis. Depending on the
biology of a pathogen, contamination of seed may not be sufficient to
introduce and establish the pathogen in the United States. For example,
a pathogen may be present in seed from an infected plant, but plants
grown from that seed may not be infected with the pathogen. We would
need specific evidence that the importation of the seed is a viable
pathway for the introduction and establishment of a quarantine pest in
order to add seed from a taxon to the NAPPRA category.
If we become aware of such evidence, we will publish a notice
announcing our determination that the importation of seed from the
taxon could result in the introduction and establishment of a
quarantine pest, and we will solicit public comment on that
determination. Commenters will have the opportunity to offer additional
information.
Requiring evidence that the importation of seed could result in the
introduction of a quarantine pest to be verified and reported in
additional papers in peer-reviewed journals would expose the United
States to risk from such pests while this research is conducted. If we
took the commenter's recommendation, we would not restrict the
importation of seed from a taxon unless there was a peer-reviewed
publication to confirm our evidence, even if the initial publication
was in a peer-reviewed journal or an authoritative reference and even
if no additional evidence was available for years or decades afterward,
which is not rare in research on plants for planting.
We stated in the proposed rule that reports of the host status of a
taxon of plants for planting that are based on the taxon's role as a
laboratory or experimental host may be discounted if we determine that
they are not relevant to the actual conditions under which the taxon
would be grown and imported. Laboratory results alone may thus be
discounted. However, if we did have evidence of environmental
transmission of a pathogen, or laboratory results that are relevant to
the conditions under which the taxon would be grown or imported, we
would add the taxon to NAPPRA to address the risk of importing a
quarantine pest. When a PRA is done to comprehensively assess the risk
posed by the importation of seed from the taxon, it will take into
account all available evidence.
We disagree with the commenter's prediction that the largest impact
of the NAPPRA category is likely to be on the importation of seed. The
importation of seed from most taxa listed as hosts of quarantine pests
will continue to be allowed--for example, seed from hosts of insect
quarantine pests.
One commenter stated that some hand-pollinated commercial F1 hybrid
vegetable seed production is located in certain parts of the world
where quarantine pathogens may be present. (``F1'' refers to the seed
(and subsequent plant) produced by fertilizing one taxon with pollen
from another taxon, the offspring of which produce a new, uniform seed
variety with specific characteristics from both parents.) The commenter
stated that, unless supported by careful risk analysis, seed of some
species could be improperly listed, which would result in potentially
severe economic impacts.
We are establishing the NAPPRA category to prevent the importation
of plants for planting that could introduce

[[Page 31199]]

quarantine pests. Accordingly, we will add to the NAPPRA list seeds
that are hosts of a seed-transmitted pathogen and that are from an area
where the pathogen is located. Depending on the mechanism of
transmission for the quarantine pathogen, standard production practices
might not mitigate the risk of transmission in hand-pollinated
commercial F1 hybrid vegetable seed. We would take into account local
production practices when preparing a PRA to determine the conditions
under which such seed could be imported.
As mentioned earlier, paragraph (d) of Sec. 319.37-4 authorizes
the importation of small lots of seed without a phytosanitary
certificate provided that the shipment meets certain conditions. Three
commenters stated that the importation of seed in small lots under
Sec. 319.37-4(d) should continue to be authorized even for taxa listed
as NAPPRA, and that the activities of seed societies should not be
further regulated.
Both commenters stated that specialist gardening societies and
other plant collectors who use the small lots of seed program can
provide information to APHIS about the potential invasiveness of newly
imported plants and plants that are already in the United States, given
their knowledge of plants and cultivation and their hands-on experience
in and equipment for cultivating rare and unusual plants.
One of the commenters stated that exempting seed from NAPPRA
restrictions would protect plant societies from financial harm and
would help ensure the cooperation of plant collectors, which would make
the United States more safe from invasive pests. This commenter stated
that, for members of plant societies, much of the enjoyment comes from
growing something unusual and challenging. One of the main incentives
for paying to join a plant society is to participate in rare seed
exchanges among members, many of whom are located outside the United
States. The most unusual, difficult-to-grow plants are by definition
things that are not already established in the United States, either
because they have not been seen before or because they are difficult to
maintain in cultivation. Without those seed exchanges, the commenter
stated, many of the societies would lose membership and could easily
become financially unviable (most of them barely break even as it is).
The commenter expressed concern that careless application of new plant
import regulations could cripple the plant societies by interfering in
the seed exchanges that help to fund them.
Both of these commenters stated that small quantities of seed are
much less likely to carry diseases or pests than live plants, and the
private collectors who use the small lots of seed program generally
grow their plants in conditions that minimize the chance of them
escaping into the wild. They are also very aggressive about eliminating
plants that show signs of disease, because they do not want trouble
spreading to the rest of their collections.
We appreciate the commenters' suggestions. We acknowledge that seed
societies practice responsible cultivation of unfamiliar taxa, and we
value their efforts to gain additional information about those taxa.
However, it is important to note that only seed that is subject to the
general requirements in the plants for planting regulations, with no
additional restrictions, is currently eligible for importation under
the small lots of seed program in Sec. 319.37-4(d). Seed may be
imported under the small lots of seed program only if it is not of any
prohibited genera listed in Sec. 319.37-2; is not of any noxious weed
species listed in part 360; does not require an additional declaration
on a phytosanitary certificate in accordance with Sec. 319.37-5; does
not require treatment in accordance with Sec. 319.37-6; is not
restricted under the regulations in 7 CFR parts 330 and 340; and meets
the requirements of 7 CFR part 361. Because seed whose importation is
not authorized pending pest risk analysis would be restricted due to
the risk of introduction of a quarantine pest via the seed, we need to
include seed whose importation is restricted under the NAPPRA category
in this list as well. Even a small number of seeds could introduce a
quarantine pest into the United States, and depending on the biology of
the quarantine pest it could spread quickly once introduced. (The
importation of seed from taxa that are quarantine pests also would not
be authorized, though we believe that responsible plant societies would
not be interested in importing such seed.)
It is important to remember that seed of most taxa will continue to
be allowed to be imported after the implementation of the NAPPRA
category. (For example, taxa of plants for planting that are difficult
to maintain in cultivation, and thus prized by members of plant
societies, would not likely be added to the NAPPRA category unless
their importation could result in the introduction and establishment of
a quarantine pest.) The importation of seed will be restricted under
NAPPRA only if scientific evidence leads us to determine that the taxon
is itself a quarantine pest or that its seed is a host of a quarantine
pest. As noted earlier, seed from most hosts of quarantine pests will
not be restricted under NAPPRA. The importation of most taxa will
continue to be allowed subject to general restrictions, and the
importation of small quantities of most seed taxa will continue to be
allowed under the small lots of seed program.
We agree that it is important to be careful in implementing the
NAPPRA category. We also agree that plant collectors and other such
enthusiasts are valuable sources of information on the behavior of
imported plants for planting, and we hope that they will provide us
with any information they have about taxa on which we solicit comments.
One of these commenters stated that, if APHIS is concerned about
leakage from the small lots of seed program into the general nursery
trade, it could put restrictions on the types of commercial use allowed
for seeds imported through that program.
The use of such seed is not the concern; the risk of introducing a
quarantine pest is the concern, which needs to be addressed by ensuring
that the importation of seed from a taxon that is a quarantine pest or
whose seed can introduce and establish a quarantine pest is not
authorized.
These commenters also emphasized the fact that plant societies have
information that is useful for our regulatory efforts. One commenter
stated that, given that private plant collectors are the people most
likely to notice potential invasiveness from a newly imported species,
or one that has been in cultivation in the United States for some time,
the Government can, and should, partner with them as an early warning
system for assessing the potential invasiveness of both newly imported
plants and those that are already in the United States. The commenter
also suggested that APHIS create a Web site for collecting invasiveness
reports from private gardeners and plant societies. APHIS could then
use this information to prioritize its plant risk evaluations.
We agree that plant societies can be valuable partners in gathering
data on risks associated with plants for planting. We will discuss with
any interested plant societies the best way to share information about
the potential damage caused by plants for planting. We are open to
creating a Web site but want to ensure that any collaboration mechanism
we develop will be as

[[Page 31200]]

effective as possible for the greatest number of interested parties.
If we finalize our forthcoming proposed rule that would revise our
Departmental permit regulations to allow nongovernmental entities to
import NAPPRA taxa under permit, we will be able to work with plant
societies interested in importing NAPPRA taxa to study these taxa and
gain more information about their risk. We look forward to working
closely with plant societies to gather information about and address
the risk associated with the importation of plants for planting.

Expanding the Scope of Plants for Planting Regulated in the Nursery
Stock Subpart

The definition of regulated plant in Sec. 319.37-1 reads: ``Any
gymnosperm, angiosperm, fern, or fern ally. Gymnosperms include cycads,
conifers, and gingko. Angiosperms include any flowering plant. Fern
allies include club mosses, horsetails, whisk ferns, spike mosses, and
quillworts.'' Based on comments we received at a May 2005 meeting, we
proposed to amend the definition of regulated plant to include
nonvascular green plants, such as mosses and green algae. The proposed
definition read: ``A vascular or nonvascular plant. Vascular plants
include gymnosperms, angiosperms, ferns, and fern allies. Gymnosperms
include cycads, conifers, and gingko. Angiosperms include any flowering
plant. Fern allies include club mosses, horsetails, whisk ferns, spike
mosses, and quillworts. Nonvascular plants include mosses, liverworts,
hornworts, and green algae.''
Several commenters stated that all macroalgae and colonial
microalgae, rather than just green algae, should be included under the
definition of regulated plant. These commenters stated that red
(Rhodophyta) and brown algae (Phaeophyceae; kelps, Fucus spp., etc.)
need the same level of evaluation as green algae, as evidenced by the
recent spread and discovery of the brown alga wakame, Undaria
pinnatifida, in San Francisco Bay, as well as the continuing spread and
damage caused by the colonial microalga Didymosphenia geminatoa (Didymo
or ``rock snot'').
In most classification systems red and brown algae, other
macroalgae, and colonial microalgae are not included in the plant
kingdom. Therefore, at this time, we do not believe it would be
appropriate to add them to the definition of regulated plant.

Relationship of the Current Regulations to the NAPPRA Category

Taxa of plants for planting whose importation is prohibited are
listed in the regulations in Sec. 319.37-2. Specific restrictions on
the importation of various taxa of plants for planting are found
elsewhere in the regulations, mostly in Sec. Sec. 319.37-5, 319.37-6,
319.37-7, and 319.37-8. We proposed to establish the process for adding
taxa of plants for planting to the NAPPRA lists in a new Sec. 319.37-
2a.
A few commenters asked about the relationship between the list of
prohibited taxa in Sec. 319.37-2 and the proposed lists of taxa whose
importation is not authorized pending pest risk analysis (i.e., the
NAPPRA lists). One asked us to clarify that the NAPPRA lists are not
replacing the lists of prohibited and restricted taxa. This commenter
also suggested that we move any taxa that are prohibited but for which
a PRA has not been conducted to the NAPPRA list. Another commenter
asked whether the prohibited taxa will automatically be placed on the
NAPPRA lists and whether the prohibited taxa would then remain on
NAPPRA until a PRA has been conducted. A third commenter asked whether
an importer could request a taxon to be moved from the list of
prohibited taxa to the NAPPRA list, saying that doing so would give
importers a means to comment on the designation of a taxon as
prohibited.
The NAPPRA lists are not replacing the list of prohibited taxa, or
the separate lists of taxa for which there are specific requirements
for importation. While the NAPPRA lists exist to prevent the
importation of taxa of plants for planting that pose a risk but for
which a PRA has not been conducted, the risks associated with all the
prohibited taxa in Sec. 319.37-2 were analyzed when the taxa were
added to the list. We may decide to reevaluate some of these taxa in
light of current scientific evidence; in order to remove any taxon from
the list of prohibited taxa, we would need to conduct a PRA and
subsequent rulemaking.
In response to the third commenter's concern, we have in the past
conducted PRAs for taxa that are listed on the prohibited list based on
public requests, and we will continue to do so. Members of the public
are free to contact us and request a PRA for any taxon on the
prohibited list. Requests must be made in accordance with Sec. 319.5.
Prohibited taxa will not automatically be added to the NAPPRA
lists. However, we may decide to list some taxa as both prohibited and
NAPPRA to make it easier for readers to determine whether the taxa can
be imported. For example, the importation of Cedrus spp. from Europe is
prohibited because Douglas fir canker and seedling disease, both
quarantine pathogens, are present in Europe, and Cedrus spp. is a host
of those pathogens. If we receive evidence that one of those pathogens
has spread to Asia, we would add Cedrus spp. to the NAPPRA list for
Asia and for other countries not exporting Cedrus spp. to the United
States, because there is a risk that the pathogen could spread to those
countries before they decide in the future to export Cedrus spp.
However, if someone reading the NAPPRA list on the plants for planting
Web site saw that the importation of Cedrus spp. from Asia was not
authorized pending pest risk analysis, that person might not think to
check the list of prohibited articles in Sec. 319.37-2 in order to
determine that the importation of Cedrus spp. is prohibited from
Europe, and thus might apply for an import permit for Cedrus spp. grown
in Denmark. For ease of reading, we would add Cedrus spp. from Europe
to the NAPPRA list as well. In general, taxa that are listed as
prohibited taxa from certain countries would also be listed as NAPPRA
from those countries when their importation from new countries is not
authorized under NAPPRA.
We are planning a proposed rule to completely reorganize the plants
for planting regulations. As currently planned, one goal of this
proposal would be to make it much easier to determine at a glance what
restrictions and prohibitions apply to the importation of a taxon.
We stated in the economic analysis accompanying the proposed rule
that, under the new NAPPRA program, we would prohibit the importation
of a plant taxon that has been scientifically shown to be a quarantine
pest or a host of a quarantine pest prior to its importation.
One commenter stated that if a taxon has already been
scientifically shown to be a pest or host of a pest, it should already
have been assessed and appropriate action should be taken. The
commenter stated that the NAPPRA program does nothing new and does not
``increase protection'' at all--it only increases bureaucratic
workload, as the USDA already has the power (as well as emergency
powers) to restrict the entry of organisms that are known to be pests.
The commenter stated that the NAPPRA category was thus duplicative of
existing powers and regulations, going against the instruction in
Executive Order 12866 to avoid duplicative regulations.

[[Page 31201]]

The commenter is correct that, in situations that we judge to pose
an emergency, we can take action immediately to stop the importation
into the United States of a taxon whose importation poses a risk of
introducing a quarantine pest. However, in the past, we have relied on
the comprehensive PRA and rulemaking processes for reviewing the
scientific literature and inviting the public to comment on
restrictions we are contemplating for specific taxa of plants for
planting. The NAPPRA category allows us to be transparent and engage
the public by publishing notices, making available the scientific
justification for our decisions, and requesting comments, while
avoiding the burden of conducting a comprehensive PRA and completing
rulemaking before putting restrictions in place, which previously had
been our common practice. The NAPPRA category thus does not duplicate
current efforts but provides us with a way to more efficiently utilize
our limited resources, to employ transparent processes in reaching and
communicating our decisions, and to allow for public participation in
the process.
We proposed to use the NAPPRA process to list as not authorized for
importation both taxa of plants for planting that are quarantine pest
plants (i.e., noxious weeds) and taxa that are hosts of quarantine
pests.
Four commenters asked about the relationship of the NAPPRA list of
taxa of plants for planting that are quarantine pest plants and the
list of noxious weeds. One recommended that we add plants for planting
that are not approved for importation to the noxious weed list.
We appreciate the opportunity to clarify our plans with regard to
taxa of plants for planting listed in the NAPPRA category as quarantine
pests. If we conduct a WRA for a taxon listed in NAPPRA as a quarantine
pest, and the WRA concludes that the importation or interstate movement
of a taxon of plants for planting should only be allowed under a permit
specifying controlled conditions intended to prevent its escape, we
would propose to add the taxon to the list of noxious weeds in 7 CFR
part 360. If the WRA does not conclude that the taxon should be added
to the noxious weed list, we would also conduct a PRA for the taxon; if
the PRA indicates that the importation of the taxon should be
prohibited or only allowed subject to specific restrictions because the
taxon is a host for a quarantine pest or pests, we would amend the
plants for planting regulations accordingly. We would not add taxa of
plants for planting on the NAPPRA lists to the noxious weed list unless
the results of our WRA supported a decision to do so.
One commenter asked how APHIS would ensure that taxa listed in
NAPPRA as quarantine pests are not imported as pure lots of seed or as
contaminants of seed lots.
With respect to pure lots of seed, such importation will not be
authorized under the final rule. We will add the NAPPRA list of
quarantine pest plants and hosts of quarantine pests, including
regulated plant parts, to the Plants for Planting Manual (previously
known as the Nursery Stock Manual) for the benefit of our port
inspectors and the public.
With regard to contaminants of other seed lots, it could be
operationally difficult to exclude such contamination until we provide
adequate identification criteria to our inspectors. Seeds of taxa
listed in NAPPRA as quarantine pest plants may be difficult to
distinguish from seed of taxa that are not subject to any specific
importation restrictions, meaning that it would be difficult to
determine which contaminated lots of seed could nevertheless be
imported and which would need to be destroyed or reexported. As noted
earlier, this final rule is part of an ongoing, broader effort to
revise the plants for planting regulations and other procedures to
better address the risks associated with plants for planting. After we
have implemented the final rule, we will continue to examine the
potential pathway for importation of nonauthorized taxa represented by
contamination of seed lots and determine the best way to mitigate the
risk associated with it.

Economic Issues

One commenter stated that the costs of implementation of the
proposed rule must be reasonable, since they are most likely going to
be transferred to the retail sector and ultimately the consumer.
There are no direct costs associated with the implementation of the
rule. Initially, we will use current resources to inspect shipments of
taxa to determine whether any NAPPRA-listed plant for planting are
present and to conduct PRAs and WRAs. Listing taxa as NAPPRA would, in
the worst case, only cause retailers to be unable to earn revenues
associated with risky plants that they will not be able to import.
However, this impact will likely be minuscule as the plants propagated
and grown in the United States will remain available. There is some
burden associated with requesting removal of a taxon from the NAPPRA
list. However, as it is optional to request removal of a taxon from the
NAPPRA category, we do not anticipate that a retailer or other importer
would make such a request unless the benefits outweighed the costs,
given that most taxa in the world would be allowed to be imported
subject to the general restrictions in the plants for planting
regulations.
One commenter stated that, in discussions of the costs of invasive
species, costs and risks are generally inflated, and unnecessary
controls are instituted on the basis of these inflated risks and costs.
The commenter also stated that most ``invasive species'' are not
economically harmful or environmentally harmful, meaning that control
costs are unnecessary.
Using the NAPPRA category will not involve us making a
determination that a taxon of plants for planting is invasive, but
rather that it is a quarantine pest or a host of a quarantine pest. As
the definition of quarantine pest requires that the pest be of
potential economic importance, part of what we will consider in making
the determination that a taxon is a quarantine pest or a host of a
quarantine pest will be the specific damage the taxon, or the
quarantine pest for which it is a host, causes to U.S. agricultural and
environmental resources. In the absence of such damage, a taxon would
not be designated as a quarantine pest. We believe this addresses the
commenter's concern.
In the Background section of the proposed rule, we stated that the
increased diversity and volume of plants currently being imported was
what led us to determine that the current regulations need to be
enhanced to provide a level of phytosanitary protection commensurate
with the risks posed by the importation of plants for planting.
One commenter stated that, if in fact there is an increased
diversity and volume of plants currently being imported, this is a
clear indication of the will of the American people, and that the
people have determined by their actions that our nation's economic
interests and environmental well-being are served by increased imports.
The commenter stated that the American people would not import plants
if this were not in their best interest to do so.
Importing a taxon of plants for planting that is a quarantine pest
or that is a host of a quarantine pest may provide revenues to the
importer and a desired ornamental plant for the consumer (for example),
but the plant may also end up causing widespread damage to U.S.
agricultural or environmental resources, or the plant

[[Page 31202]]

may be infested with a pest that causes such damage. As individual
importers and consumers may not be aware of the risks associated with
the importation of such plants for planting, and often do not bear the
cost and burden of remedying the resulting negative impacts to the
community as a whole, we regulate the importation of plants for
planting to help avert such damage and its associated costs.
One commenter stated that the economic analysis prepared for the
proposed rule considered the costs associated with the introduction of
quarantine pests but not the potential economic benefits from importing
new species. The commenter stated that many multimillion-dollar crops
such as amaranth, milk thistle (Silybum marianum), and St. John's wort
were formerly considered weeds, meaning their importation would not
have been authorized under NAPPRA. The commenter stated that many
countries now forbid the export of living organisms because they
recognize the economic value of such species and claim sovereignty over
their biodiversity. The commenter recommended that we consider
potential benefits as well as potential costs associated with species
added to the NAPPRA lists.
We appreciate the commenter's suggestion. As we are not adding any
specific taxa to the NAPPRA lists in this final rule, any discussion of
the economic benefits associated with importing taxa that we add to the
NAPPRA in the future would be speculative. On the other hand, the
examples of damage caused by the introduction of pests into the United
States via the importation of plants for planting can be easily
quantified, which is why we included that discussion.
If we receive a request to remove a taxon of plants for planting
from the NAPPRA list, we would conduct a PRA to more fully examine the
risks associated with the importation of the taxon. If the PRA
indicates that the importation of the taxon should be prohibited or
allowed subject to restrictions, we will initiate rulemaking to amend
the regulations accordingly. We will include with the proposed rule an
economic analysis that takes into account both the potential benefits
associated with the importation of the taxon and the costs of control
actions that may become necessary if it is imported. (If the PRA
indicates that the taxon can be safely imported subject to the general
restrictions in the plants for planting regulations, we will publish a
notice indicating that we have determined that the taxon can be removed
from the NAPPRA list and making the PRA available for comment.)
As discussed earlier, the fact that a plant taxon is called a weed
would not be enough of a reason to add it to the NAPPRA list. We would
need evidence of its economic importance, based on the damage it
causes. It would also need to be either not present in the United
States or present but not widely distributed and under official
control. Amaranth is a common food crop in Latin America and has been
grown in the United States for decades without record of causing
economically important damage. Milk thistle is listed as a noxious weed
by three States, so we would likely have considered restricting its
importation had the NAPPRA category been in place when milk thistle was
first imported. St. John's wort is native to the United States and so
would not have been eligible for consideration as a quarantine pest. Of
the three plant taxa the commenter cites, then, only one would have
actually been considered for listing in NAPPRA, consistent with the
fact that the importation of most taxa will continue to be allowed when
we implement the NAPPRA category.
In discussing the expected benefits of implementing the proposed
NAPPRA category, the economic analysis accompanying the proposed rule
discussed the costs associated with control of invasive species in the
United States. One publication cited in this discussion was Pimentel et
al. (2000),\16\ which estimates that nonindigenous plant pathogens
cause $21 billion in U.S. crop losses each year and that growers spend
approximately $500 million annually on fungicides to combat these
pathogens.
---------------------------------------------------------------------------

\16\ Pimentel, D., Lach, L., Zuniga, R., and Morrison, D. 2000.
Environmental and economic costs of nonindigenous species in the
United States. BioScience 50:53-65.
---------------------------------------------------------------------------

One commenter stated that Pimentel et al. (2000) has been shown to
be pseudoscientific and an example of serious misrepresentation, as
many of the costs are grossly overinflated and have no actual economic
basis whatsoever. The commenter cited as an example the methodology
that Pimentel et al. (2000) used to determine economic losses
associated with cats. While, as the commenter noted, cats are not
plants, the commenter stated that it is important to note this as an
example of the poor quality of Pimentel et al.'s data and reasoning.
We have found no evidence from reliable sources that would suggest
that Pimentel et al. (2000), as well as the subsequent updated
publication Pimentel et al. (2005),\17\ has been shown to be
``pseudoscientific'' or ``an example of a serious misrepresentation''
of the costs. The updated Pimentel et al. (2005) study has been cited
in more than 500 scientific journal articles and research reports.
Pimentel et al. (2000) and (2005) are comprehensive studies of the
annual costs associated with the presence of invasive species in the
United States. The costs are compiled from more than 140 various
studies, publications, journal articles, and agency reports. The costs
associated with invasive species, as reported in Pimentel et al. (2000)
and (2005), include plants, mammals, fish, birds, reptiles, arthropods,
mollusks, weeds, and plant pathogens, to name a few. Pimentel et al.
(2005) estimated the cost of environmental damages associated with
invasive alien pests into the United States at $120 billion annually;
however, only the costs associated with invasive plant pests were
considered pertinent to the NAPPRA proposal. An Ecological Society of
America report (Lodge et al. (2006) \18\) finds that the Pimentel et
al. (2005) may actually underestimate the net costs of invasive species
to society by examining ``only a small subset of harmful species,'' and
contends that the net costs are actually much higher than they appear
in Pimentel et al. (2005).
---------------------------------------------------------------------------

\17\ Pimentel, D., Zuniga, R., and Morrison, D. 2005. Update on
the environmental and economic costs associated with non-indigenous
species in the United States. Ecological Economics 52:273-288. The
economic analysis accompanying this final rule uses the updated
estimates of damage from invasive species in Pimentel et al. (2005).
\18\ Lodge, D. M., Williams, S., MacIsaac, H. J., Hayes, K. R.,
Leung, B., Reichard, S., Mack, R. N., Moyle, P. B., Smith, M.,
Andow, D. A., Carlton, J. T., McMichael, A. 2006. Biological
invasions: Recommendations for U.S. policy and management.
Ecological Applications 16:2035-2054.
---------------------------------------------------------------------------

The commenter provided no comments specific to the Pimentel et al.
(2000) estimate of the damage associated with invasive species. APHIS
finds no basis for the assertion that Pimentel et al. (2000) displays
poor quality in its data and reasoning.
One commenter specifically addressed the estimate Pimentel et al.
(2000) provide for damage from invasive species. Pimentel et al. (2000)
state that weeds (both native and non-native) cause an overall crop
reduction of 12 percent per year out of the more than $267 billion
potential value of all U.S. crops, which leads to a $32 billion figure.
Following this, Pimentel et al. (2000) asserts, based on the results of
a single survey, that 73 percent of weeds in crop fields are
nonindigenous, yielding an estimate of $23.4 billion lost to non-native
weeds. (Another

[[Page 31203]]

commenter stated that costs of crop reductions from pests include
native pests, and so overstate the impact from introduced pests; the
first commenter's summary of Pimentel et al. (2000) is correct.)
The commenter stated that, in the interest of good science, more
representative of reality, a number of statistical surveys should be
done multiple times within the year, in many different regions of the
country, on different crops, and in different years. Data collection of
this nature would better elucidate the actual influence of both native
and non-native weeds by including: Different weed life cycles which
influence crop growth at different times, different climates and
conditions in the United States, certain crops which may naturally
compete with weeds better than others, and the distribution of weeds
under different climatic conditions.
We agree with the commenter that it would be preferable to have
more data available regarding the cost of the damage associated with
non-native weeds in general. However, Pimentel et al. (2000) and the
updated Pimentel et al. (2005) nevertheless provide a general estimate
of the scope of the problem. As discussed earlier, this final rules
does not impose broad restrictions or prohibitions on the importation
of taxa of plants for planting, but rather allows us to impose
restrictions on specific taxa based on scientific evidence that they
can damage U.S. agricultural and environmental resources. The Pimentel
et al. (2000) estimate indicates the magnitude of the costs incurred
due to damage from plant species, even though it may not be an exact
figure.
The commenter went on to note that Pimentel et al. (2000) then add
$3 billion spent on weed controls to the earlier estimate of $23.4
billion in lost crop yields, for a total of $26.4 billion. However, the
commenter stated, the study does not take into account the costs that
native weeds inflict by replacing non-native weeds; thus still
contributing to crop losses and requiring associated control methods.
To their credit, Pimentel et al. (2000) acknowledge the fact that
native weeds would replace non-native varieties. On the other hand,
Pimentel et al. (2000) state that any potential overestimation of the
impact of non-native weeds would be canceled out by other potential
losses such as environmental and public health damages resulting from
herbicide and pesticide application. The environmental and public
health damages due to herbicide and pesticide application are certainly
valid concerns. Nevertheless, the commenter stated, it is not logical
to imply that the risks of pesticides and herbicides would be much less
or not exist if native weeds only were found within crop fields. Crop
fields with only native weeds present would still require the
application of herbicide and pesticides to control non-crop plants and
other pests. Thus, the $26.4 billion figure reported by Pimentel et al.
(2000) attributed to non-native weeds may still be incurred anyway,
even if native weeds only were found in crop fields. The commenter
added that this point was made in the study by Costello and McAusland
(2003),\19\ who criticized Pimentel et al. (2000) for overestimating
the true marginal cost of the noninvasive species surveyed.
---------------------------------------------------------------------------

\19\ Costello, C. and McAusland, C. 2003. Protectionism, trade,
and measures of damage from exotic species introductions. Am. J.
Agricult. Econ. 85:964-975.
---------------------------------------------------------------------------

Costello and McAusland (2003) indeed contend that the estimates
found in Pimentel et al. (2000) tend to overstate the marginal costs of
non-native species with respect to agricultural activity, in that costs
of the spread of native species are not deducted from the estimated
monetary costs associated with biological invasions in the United
States. However, Costello and McAusland (2003) also argue that the
estimates found in Pimentel et al. (2000), as well as the estimates
from the U.S. Congress' Office of Technology Assessment on which much
of Pimentel et al. (2000)'s analysis is based, may be viewed as
underestimates, as they ``tend to overlook damage to nonmonetized
assets such as functioning ecosystems; these estimates may be viewed as
lower bounds on the total costs associated with invasives.'' Costello
and McAusland (2003) argue that the practice of determining measures
based solely on agricultural damage can produce ``misleading indicators
of how restrictions to trade affect total losses arising from exotic
species introductions.'' In their view, treating damages arising in
agriculture as a proxy for overall costs related to invasive species
may also mislead us with regard to not only the magnitude of these
costs but other qualitative effects that trade policy has on the
problem of invasive species. As discussed earlier, preventing damage to
U.S. environmental resources is a goal of the NAPPRA category, along
with preventing damage to U.S. agricultural resources. In this context,
Costello and McAusland (2003) indicate that Pimentel et al. (2000)
underestimate the total costs associated with invasive species.
The economic analysis also cited the National Plant Board's 1999
estimate of the cost of damage caused by invasive plant pests, which
was $41 billion annually in lost production and in prevention and
control expenses. The two commenters who addressed Pimentel et al.
(2000) did not provide any comments with respect to this other
estimate. It remains clear to us that the invasive plant pests cause
large-scale damage to U.S. agricultural and environmental resources,
meaning the actions taken to prevent the introduction of quarantine
pests via the importation of individual taxa of plants for planting
into the United States will provide substantial economic benefits.

Other Measures To Address the Risk of Importing Plants for Planting

Commenters also suggested several measures to address the risk
associated with imported plants for planting that are beyond the scope
of the proposed rule. We will consider these comments as we continue
our ongoing revision of the plants for planting regulations. The
measures suggested by commenters are discussed below.

Mandatory Treatment

Four commenters recommended that we require treatment of plants
upon arrival. Two of these commenters stated that mandatory
disinfection should be considered. One stated that the invasiveness of
plant pests and pathogens is a problem that could be handled by the
application of a general fungicide or insecticide upon entry or from
the deliverer. Another recommended treatment of high-risk horticultural
plants or plant products.
Another commenter recommended that we consider requiring all
imported plants to undergo a disinfestation treatment regardless of
whether pests have been detected in the shipment, but added that
research into effective and environmentally safe treatments is greatly
needed.
When the plants for planting regulations were established, we
required fumigation with methyl bromide for all shipments of imported
plants. While this addressed the risk associated with insect pests that
infested plants for planting, it had no effect on pathogens that
infected plants for planting; no disinfectant treatment for plants for
planting is available. Treatment does not address plants that are
quarantine pests, either, since any plant that survived the treatment
would still be a quarantine pest.

[[Page 31204]]

In part due to the fact that plants for planting are now imported
in large quantities 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; the adverse
effects of fumigating 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 with methyl bromide. 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 WTO SPS Agreement requires that any
restrictions APHIS imposes on the importation of plants for planting to
be based on scientific principles and 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.
We would consider imposing a routine disinfestation requirement in
the future if a treatment becomes available that is effective and does
not have the potential for significant impacts on the human
environment, and if we determine that such a requirement is necessary
to achieve a more appropriate level of protection against the risk
posed by the importation of plants for planting.

Inspections

We received several comments on the inspection of imported plants
for planting at ports of entry before they are allowed to enter the
United States.
Two commenters expressed support for additional staffing of
inspection stations and plant pathology laboratories that, in their
view, would be required to implement the proposed rule.
Implementing the proposed rule will not require increased resources
for inspection; it will simply require current inspectors to be able to
identify the taxa that we list as NAPPRA and ensure that they are not
imported into the United States. We will communicate changes in the
list of NAPPRA taxa in the same manner we currently communicate changes
in the restrictions or prohibitions that are in the regulations
governing the importation of plants for planting, by developing
identification aids and updating our manuals.
Two commenters stated generally that increasing the intensity of
inspections should be considered; one added that plant inspection
stations should be upgraded.
A third commenter opposed the proposed rule and stated that,
instead of implementing it, we should implement several measures to
increase the intensity and effectiveness of inspection. The commenter
stated that there simply must be more actual inspections of imported
plants and plant products, which is the best way to stop imported pests
is at the port of entry. The commenter stated that inspectors must be
trained in plant identification, entomology, plant pathology, and
nematology.
The commenter stated that an inspection must consist of more than
just checking paperwork. The commenter stated that, in the USDA export
certification manual, nursery stock for export is to be inspected at a
100-percent rate if practical; the commenter stated that 100 percent of
imported nursery stock should also be inspected upon arrival, not just
a small percentage as is being presently done by USDA. For example, the
commenter stated, Costello and McAusland (2003) referred to a joint
report from APHIS and the U.S. Forest Service that states:
``Containerized cargo is usually packed tightly in the trailer and
often stacked to the roof, preventing inspection of all but a small
percentage of the shipment visible at the tailgate (i.e. open doors).''
The commenter stated that incomplete inspections, at ports of entry,
open the United States to risks which could otherwise be curtailed. The
commenter stated that if a complete inspection cannot be done at the
port, a complete inspection of all imported plants should be done as
they are unloaded at their final destination (and not just the small
portion visible at a tailgate). This, the commenter stated, will not
only screen for quarantine pests but will also catch illegal taxa.
The commenter also suggested performing laboratory tests on high-
risk plants, requiring post-entry quarantines to be conducted in
covered greenhouses, and performing followup checks on imported plants
not in post-entry quarantine.
We appreciate the commenters' suggestions. However, several factors
limit our ability to increase the intensity of our inspections. Limited
resources play a role, as the importation of plants for planting
continues to increase while our resources for inspecting imported
plants for planting are expected to remain steady or decrease in the
coming years. In addition, as discussed in the foundation document that
accompanied the proposed rule, inspection is approaching, or may have
reached, the limits of its operational efficacy due to the increased
volume and diversity of importations. If more resources become
available for inspection of imported plants for planting, we will
certainly consider means by which we can make inspections more intense
and effective. The NAPPRA category will allow us to direct inspectors'
attention to taxa of plants for planting that are quarantine pests or
hosts of quarantine pests and thus maximize the effectiveness of the
current inspection process.
Several factors make the third commenter's suggestions impractical.
Inspecting 100 percent of imported nursery stock would delay release of
perishable commodities, especially if resources to conduct inspections
were not increased, thus potentially making many shipments of imported
plants for planting worthless. In addition, past a certain point,
inspecting additional plants does little to increase the probability of
detecting a pest; to maximize the effectiveness of our limited
resources, we inspect according to statistical plans that are designed
to find pests at low levels of infestation with a high level of
confidence. If a quarantine pest that can be detected through
inspection is present in a shipment of plants for planting, it is
likely to have infested plants in the shipment at a high rate, meaning
that these inspections are highly likely to find any available visual
evidence of infestation by quarantine pests.
These statistical plans demand that the sampling we take is truly
random, meaning that we inspect plants from all areas in a container or
box, not just those at the top or on the sides. The quote the commenter
cited from Costello and McAusland (2003) was drawn in turn from a PRA
that discussed the importation of solid wood packing material (SWPM).
That PRA is specific to challenges in inspecting SWPM, and in this
context discusses the challenge of removing or devanning cargo in order
to facilitate inspection of SWPM. This challenge does not apply to
inspection of plants for planting. Inspectors select random samples of
plants for planting from all areas within containerized shipments of
plants for planting in order to ensure that our inspections are
effective. Removing individual plants from various areas within a
container is easier than removing the SWPM, since the SWPM typically
fills the container and

[[Page 31205]]

provides a structure for the contents of the container.
As the commenter noted, the nursery stock export manual states that
the inspection level should be as close to 100 percent as practical; in
practice, with plants for planting shipments containing thousands of
articles, 100 percent inspection is rarely practical for either import
or export of plants for planting. The nursery stock export manual also
provides a minimum level of sampling and statistical plans for
conducting sampling of fewer than 100 percent of the articles in a
shipment of plants for planting, consistent with the inspections we
conduct for imported plants for planting.
Laboratory tests, requirements for post-entry quarantine in covered
greenhouses, and followup checks on imported plants not in post-entry
quarantine, if implemented as general restrictions as the commenter
suggests, would vastly increase the difficulties and potentially the
cost associated with the importation of plants for planting. Requiring
laboratory tests of high-risk plants would further delay the
importation of perishable commodities. In addition, without having
identified quarantine pathogens that might be associated with the
plants, it would be impossible to test for them. For most taxa, there
is no easy-to-administer test or suite of tests that encompasses all
major known pathogens, and even such a test or suite of tests would
miss emerging pathogens for which reliable, cost-effective diagnostic
methods have not yet been developed but that have been observed on
plants for planting.
Our inspectors are well-trained in plant identification,
entomology, plant pathology, and nematology. In addition, if they find
any plant pests that are beyond their expertise, they have additional
resources to call upon in order to make a final determination regarding
whether to allow a shipment of plants for planting to enter the United
States. If our inspectors find a pest in a shipment, we will hold the
shipment back from entering U.S. commerce until and unless we can
verify that the damage or symptoms are not caused by a quarantine pest.
Moreover, the increased inspections the commenter recommends would
not address all the problems that will be addressed by implementation
of the NAPPRA category. As discussed in the proposed rule, inspection
as a sole mitigation measure may not always provide an adequate level
of protection against quarantine pests, particularly if a pest is rare,
small in size, borne within the plant, or an asymptomatic plant
pathogen.
Requiring that post-entry quarantine occur in covered greenhouses
would greatly increase the cost of importing any plants in post-entry
quarantine and would only reduce the risk associated with plants that
are already required to be imported into post-entry quarantine, not any
other plants that pose a risk of introducing quarantine pests into the
United States. Followup checks on plants for planting imported into the
United States would be virtually impossible to conduct given the lack
of a traceability infrastructure for plants and the diversity of
destinations for imported plants for planting.
In summary, the commenter's suggestions would not adequately
address the risk associated with the importation of plants for
planting, and we continue to find the implementation of the NAPPRA
category to be necessary to provide a more appropriate level of
protection. This strategy is consistent with the National Plant Board's
Safeguarding Review, referred to earlier in this document, which
stated: ``While port of entry inspection must continue to play an
important role in the exclusion of invasive plant pests, the historic
view that this activity can function as the focal point for exclusion
must be abandoned. A new risk based management strategy that requires
compliance and mitigation of pest risk at origin can both reduce risk
and enable expedited entry.''
One commenter, noting our discussion in the proposed rule of the
limits of inspection, stated that the ineffectiveness of inspection in
the cases cited above indicated that USDA is failing to do its job, and
that the proposal constituted a plan to divert manpower and resources
from inspection to a completely spurious risk assessment program.
Inspection will continue to be a key component of our efforts to
prevent the introduction of quarantine pests via imported plants for
planting. One way we will gain information about quarantine pest
threats is when inspectors find quarantine pests infesting shipments of
plants for planting offered for importation at a port of entry.
Acknowledging the limitations of visual inspection does not constitute
a failure of visual inspection; rather, it indicates that safeguards in
addition to visual inspection are necessary to protect U.S.
agricultural and environmental resources against the introduction of
quarantine pests. The NAPPRA category is one additional safeguard in
this effort.
In addition, we are not diverting resources from inspection to risk
assessment as part of this proposal; our inspections will continue at
the same level as they have in the past.
With regard to the term ``asymptomatic plant pathogen,'' this
commenter also asked how an organism can be considered pathogenic if
there are no symptoms associated with infection.
Many plant pathogens are asymptomatic at various points in their
life cycles. Phytophthora spp. pathogens are one example. We would not
expect a visual inspection to be effective at detecting a pathogen if
the pathogen is at an asymptomatic stage of its life cycle.

Identification

One commenter was unable to determine whether specific and positive
species identification is required for all imported plants for
planting. The commenter stated that a challenge to all APHIS inspectors
is that many importations are currently not required to be properly
labeled. As such, determining which ones are risky based only upon a
generic designation, or the designation of the primary species but not
those used as packing, decoration, or additional materials, becomes
impossible for a responsible inspector. Rather than put such an unfair
burden on the hard-working inspectors, the commenter stated, the
regulations should require that all species be properly identified. It
is true that some species are hard to properly identify even by
experts, the commenter stated, but certainly proper identity to the
best general consensus would be acceptable and still allow for the
variability that occurs in taxonomy.
We appreciate the commenter's concerns. In the regulations, the
introductory text of Sec. 319.37-4(a) sets out the identification
requirements for imported plants for planting. The identification
requirements are as follows:

The phytosanitary certificate must identify the genus of the
article it accompanies. When the regulations in [the plants for
planting regulations] place restrictions on individual species or
cultivars within a genus, the phytosanitary certificate must also
identify the species or cultivar of the article it accompanies.
Otherwise, identification of the species is strongly preferred, but
not required. Intergeneric and interspecific hybrids must be
designated by placing the multiplication sign ``x'' between the
names of the parent taxa. If the hybrid is named, the multiplication
sign may instead be placed before the name of an intergeneric hybrid
or before the epithet in the name of an interspecific hybrid.

Thus, we require identification to the species or cultivar level
when such identification is necessary for the

[[Page 31206]]

inspector to make a decision. Because species are listed as NAPPRA in
accordance with the plants for planting regulations, the phytosanitary
certificate accompanying any shipment containing plants from genera in
which species are listed as NAPPRA will be required to identify the
species or cultivars of the plants in that shipment.
Any taxon of plants for planting included in a shipment, including
packing, decoration, or additional material, must be accounted for in
its accompanying documentation, and our inspectors inspect them all for
the presence of quarantine pests.
One commenter asked whether identification problems could be a
weakness in the proposal. The commenter proposed a hypothetical
situation in which, if the commenter wished to bring a plant into the
country that was or might be considered a risk, he would label it with
the name of a plant on APHIS' safe list with similar characteristics.
Secondly, the commenter would send through plant inspections only small
seedlings or cuttings. The commenter would assume that the quality of
APHIS taxonomists was such that they might well not be able to tell the
difference between the high-risk plant he was trying to import and the
safe plant whose name he used. If caught, the commenter stated, such a
hypothetical miscreant could blame his taxonomist.
With a few, limited exceptions, all imported plants for planting
must be accompanied by a phytosanitary certificate with the
identification information given above. It is important to note that
the phytosanitary certificate is not issued by the exporter or importer
but by the NPPO of the exporting country, which is responsible under
the IPPC for ensuring that the phytosanitary certificate is accurate,
complete, and current with respect to its description of the articles
it accompanies. Although the exporter may supply identification
information, the NPPO of the exporting country must verify it.
Nevertheless, we do receive phytosanitary certificates with
incorrect identification information. In those cases, we would hold the
NPPO of the exporting country responsible, along with the exporter and
importer. Both civil and criminal penalties are available should we
discover such a violation.
We should also note that the NAPPRA category does not establish a
``safe list.'' Taxa of plants for planting will be listed as NAPPRA
when we make the determination that they are quarantine pests or hosts
of quarantine pests, based on scientific evidence. Most taxa will
continue to be allowed to be imported subject to general restrictions,
one of which is the phytosanitary certificate requirement mentioned
here.

Postentry Quarantine

One commenter recommended, as an action to take beyond the
implementation of the NAPPRA category, that we require additional plant
types to be cleared through postentry quarantine facilities that have
been upgraded to ensure that pests cannot escape during the quarantine
period.
In general, postentry quarantine, as provided for in Sec. 319.37-
7, is an important tool in mitigating the risk associated with the
importation of certain plants for planting. It is not clear whether the
commenter is referring to additional plant types as in cuttings, whole
plants, etc., or additional plant taxa. That said, postentry quarantine
will be a mitigation that is available to us when we determine, as part
of a comprehensive PRA, what mitigations may be necessary in order to
allow the importation of taxa on the NAPPRA lists. We will consider the
commenter's suggestion to require postentry quarantine more broadly as
we continue our ongoing revision of the plants for planting
regulations.

Risk-Mitigating Production Practices

Several commenters suggested that we consider working with industry
to develop and implement production practices that mitigate the overall
risk associated with the importation of plants for planting. Many
referred to such practices as ``best management practices'' (BMPs),
consistent with our discussion in the December 2004 ANPR mentioned
earlier in this document. Commenters cited mitigations including:
Using lower-risk plant materials such as seeds, cuttings,
and tissue culture;
Pest detection, testing, and tracking mechanisms;
Growing plants in greenhouses or laboratory settings;
Certifying plants as clean before shipment; and
Micropropagation in vitro.
Commenters cited differing means by which APHIS could use BMPs as a
regulatory tool. Many stated that importation of taxa that are listed
as NAPPRA or that are prohibited could be allowed to be imported if
produced in accordance with certain BMPs. One stated that the
regulations should embrace novel approaches such as industry codes of
conduct, self-regulating programs operating under APHIS-established
guidelines, and certification or accreditation of commercial operations
or institutions that can demonstrate both capacity and commitment to
compliance. Another recommended that we allow exceptions to the ban on
the importation of vegetative material from taxa listed as hosts of
quarantine pests if the nature of the pest(s) of concern meant that the
pest could be mitigated by production practices--for example, by
production in vitro. Similarly, a third commenter recommended that we
conduct PRAs for low-risk types of plants for planting, such as seed,
tissue culture, and cuttings, and apply less stringent import
restrictions for them, to encourage the importation of these types of
plants for planting. A fourth recommended that we proceed with the
development of a regulatory systems approach as the second phase of the
revision of the plants for planting regulations.
We agree with these commenters. While adding such provisions to the
regulations would be beyond the scope of the proposed rule, we are
working to develop provisions for the use of various risk-mitigating
measures in combination that would help facilitate the importation of
taxa on the NAPPRA lists and of prohibited and other restricted taxa.
We have been working with industry to develop risk-mitigating measures
that, if followed, would ensure that plants for planting produced in
accordance with them are free of quarantine pests.
In order to determine that plants for planting that were produced
in accordance with certain practices or certain types of plants for
planting are low risk, we would need to conduct a risk evaluation. This
would not necessarily be a full PRA; it may be a pest list and a risk
management document, to determine that the risk-mitigating measures are
generally effective against the quarantine pests that could infest or
infect the plants for planting. We would make the risk evaluation
available to the public.

Other Strategies

One commenter recommended that the United States develop a National
Weed Strategy Act, the key provisions of which would include:
An electronic system to determine the provenance of exotic
species that are introduced into the United States and into the
individual States;
A list of species whose importation into the United States
is not allowed;
Protocols for purposeful importation and introduction of
exotic species, including a quarantine insurance bond, paid by the
importer,

[[Page 31207]]

which would cover the cost of control efforts in case any become
necessary;
A national biosecurity fund, from the proceeds associated
with quarantine insurance bonds, that would fund risk assessment,
control and eradication, outreach, and other activities;
Protocols for accidental introductions, including a
negligence scale to assess accidental introductions and liability
standards for assessing appropriate fines; and
Model State-level biosecurity laws to allow for Federal-
State cooperation.
Another commenter also stated that the importer of plants for
planting should become a property owner who must compensate and remove
any introduction of an invasive plant species, pathogen, or insect.
As recognized by the commenter, the recommendations with respect to
a National Weed Strategy Act would require new legislation. The
implementation of many of these recommendations would be highly
disruptive to current commerce in plants for planting. Implementing the
NAPPRA category is a crucial part of our broader effort to achieve a
more appropriate level of protection against the risk posed by the
importation of plants for planting within existing statutory authority.
We do have a list of taxa whose importation is prohibited; we are
establishing in this final rule a process to list taxa whose
importation is not authorized pending pest risk analysis.

Miscellaneous Changes

The first sentence of paragraph (a) in Sec. 319.37 states that no
person shall import or offer for entry into the United States any
prohibited article, except as otherwise provided in Sec. 319.37-2(c).
To ensure that the regulations clearly indicate that NAPPRA taxa are
not allowed to be imported, we are amending this sentence so that it
also indicates that no person shall import or offer for entry into the
United States any article whose importation is not authorized pending
pest risk analysis, except as otherwise provided in Sec. 319.37-2(c).
We proposed to change the definition of restricted article in Sec.
319.37-1 to refer to plants for planting and to the NAPPRA category.
That definition indicates that any articles regulated in Sec. Sec.
319.8 through 319.24 or 319.41 through 319.74-4 and any articles
regulated in 7 CFR part 360 are not restricted articles. However,
citrus fruit, whose importation is regulated in Sec. 319.28, are also
not restricted articles. Therefore, we are making an additional change
to the definition of restricted articles by indicating that articles
regulated in Sec. 319.28 are also not restricted articles.
We are also changing proposed paragraph (e)(2)(i)(C) of Sec.
319.37-2a to clearly indicate that, if we publish a notice indicating
that importation of a taxon on the NAPPRA list should be allowed
subject to the general restrictions in the regulations, the PRA
published along with the notice would have determined that the
importation of the taxon does not pose a risk of introducing a
quarantine pest into the United States.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

This final rule has been determined to be significant for the
purposes of Executive Order 12866 and, therefore, has been reviewed by
the Office of Management and Budget.
We have prepared an economic analysis for this rule. The economic
analysis provides a cost-benefit analysis, as required by Executive
Orders 12866 and 13563, which direct agencies to assess the costs and
benefits of available regulatory alternatives and to select regulatory
approaches that maximize benefits, reduce costs, harmonize rules across
agencies, and promote flexibility. The economic analysis also analyzes
the potential economic effects of this action on small entities, as
required by the Regulatory Flexibility Act.
The final rule will amend the importation of plants for planting
regulations to establish a new category of regulated articles. This
category will list taxa of plants for planting whose importation is not
authorized pending pest risk analysis. This action is necessary to
increase our safeguards against the risk of introduction of plant pests
or pest plants (noxious weeds) that are associated with the importation
of plants for planting and protect domestic agriculture and
environmental resources. The final rule will establish the NAPPRA
regulatory category and process. The rule will not establish any broad
restrictions or prohibitions but will only target specific taxa; most
taxa of plants for planting will continue to be allowed to be imported
subject to the current general restrictions. The expected benefits of
using the NAPPRA process to respond to risks far outweigh any expected
costs of implementing the regulation.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The review reveals that this rule will not have
substantial and direct effects on Tribal governments and will not have
significant Tribal implications.

Paperwork Reduction Act

The proposed rule did not propose to add any information collection
or recordkeeping requirements. However, this final rule adds a
requirement that requests to remove a taxon from the NAPPRA category be
made in accordance with Sec. 319.5. This section requires the
submission of information that is necessary for us to conduct a PRA. We
estimate that this information collection will require approximately
5.6 hours per response. We made this change based on requests from
commenters to allow only NPPOs to request that taxa be removed from the
NAPPRA list; Sec. 319.5 requires the submission of information
available only from an NPPO. We also determined that we need all the
information in Sec. 319.5 in order to successfully conduct a PRA for
the importation of taxa of plants for planting, just as we need such
information to conduct a PRA for the importation of fruits and
vegetables.
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), we published a notice in the Federal
Register on May 3, 2011 (76 FR 24848-24850, Docket No. APHIS-2006-
0011), announcing our intention to initiate this information collection
and soliciting comments on it. We are asking the Office of Management
and Budget (OMB) to approve our use of this information collection for
3 years. When OMB notifies us of its decision, we will publish a
document in the Federal Register providing notice of the assigned OMB
control number or, if

[[Page 31208]]

approval is denied, providing notice of what action we plan to take.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 7 CFR Part 319

Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.

Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136
and 136a; 7 CFR 2.22, 2.80, and 371.3.

Subpart--Plants for Planting ^{1 2}
---------------------------------------------------------------------------

\1\ The Plant Protection and Quarantine Programs also enforces
regulations promulgated under the Endangered Species Act of 1973
(Pub. L. 93-205, as amended) which contain additional prohibitions
and restrictions on importation into the United States of articles
subject to this subpart (See 50 CFR parts 17 and 23).
\2\ One or more common names of articles are given in
parentheses after most scientific names (when common names are
known) for the purpose of helping to identify the articles
represented by such scientific names; however, unless otherwise
specified, a reference to a scientific name includes all articles
within the category represented by the scientific name regardless of
whether the common name or names are as comprehensive in scope as
the scientific name.

0
2. The heading of the subpart consisting of Sec. Sec. 319.37 through
319.37-14 is revised to read as set forth above.

Sec. 319.37 [Amended]

0
3. Section 319.37 is amended as follows:
0
a. In paragraph (a), in the first sentence, by adding the words ``or
any article whose importation is not authorized pending pest risk
analysis in accordance with Sec. 319.37-2a'' after the word
``article''.
0
b. In paragraph (b), by removing the words ``plant pests'' and adding
the words ``quarantine pests'' in their place; and by removing the
words ``plant pest'' and adding the words ``quarantine pest'' in their
place.

0
4. Section 319.37-1 is amended as follows:
0
a. By adding, in alphabetical order, new definitions of noxious weed,
official control, planting, plants for planting, quarantine pest, and
taxon (taxa).
0
b. By removing the definition of nursery stock.
0
c. In the definition of clean well water, by removing the words ``plant
pathogens or other plant pests'' and adding the words ``quarantine
pests'' in their place.
0
d. In the definition of phytosanitary certificate of inspection, by
removing the words ``injurious plant diseases, injurious insect pests,
and other plant pests'' and adding the words ``quarantine pests'' in
their place.
0
e. In the definition of prohibited article, by removing the words
``nursery stock, plant, root, bulb, seed, or other plant product'' and
adding the words ``plant for planting'' in their place.
0
f. By revising the definitions of regulated plant and restricted
article to read as set forth below.

Sec. 319.37-1 Definitions.

* * * * *
Noxious weed. Any plant or plant product that can directly or
indirectly injure or cause damage to crops (including plants for
planting 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.
* * * * *
Official control. The active enforcement of mandatory phytosanitary
regulations and the application of mandatory phytosanitary procedures
with the objective of eradication or containment of quarantine pests.
* * * * *
Planting. Any operation for the placing of plants in a growing
medium, or by grafting or similar operations, to ensure their
subsequent growth, reproduction, or propagation.
Plants for planting. Plants intended to remain planted, to be
planted or replanted.
* * * * *
Quarantine pest. A plant pest or noxious weed that is of potential
economic importance to the United States and not yet present in the
United States, or present but not widely distributed and being
officially controlled.
Regulated plant. A vascular or nonvascular plant. Vascular plants
include gymnosperms, angiosperms, ferns, and fern allies. Gymnosperms
include cycads, conifers, and gingko. Angiosperms include any flowering
plant. Fern allies include club mosses, horsetails, whisk ferns, spike
mosses, and quillworts. Nonvascular plants include mosses, liverworts,
hornworts, and green algae.
Restricted article. Any plant for planting, excluding any
prohibited articles listed in Sec. 319.37-2(a) or (b) of this subpart,
any articles whose importation is not authorized pending pest risk
analysis under Sec. 319.37-2a of this subpart, and excluding any
articles regulated in Sec. Sec. 319.8 through 319.28 or 319.41 through
319.74-4 of this part and any articles regulated in part 360 of this
chapter.
* * * * *
Taxon (taxa). Any grouping within botanical nomenclature, such as
family, genus, species, or cultivar.
* * * * *

Sec. 319.37-2 [Amended]

0
5. Section 319.37-2 is amended as follows:
0
a. In paragraph (a), in the third column of the heading of the table,
by removing the words ``Plant pests'' and adding the words ``Quarantine
pests'' in their place.
0
b. In paragraph (c) introductory text, by adding the words ``, and any
article listed in accordance with Sec. 319.37-2a of this subpart as an
article whose importation is not authorized pending pest risk
analysis,'' after the word ``section''.

0
6. A new Sec. 319.37-2a is added to read as follows:

Sec. 319.37-2a Taxa of regulated plants for planting whose
importation is not authorized pending pest risk analysis.

(a) Determination by the Administrator. The importation of certain
taxa of plants for planting poses a risk of introducing quarantine
pests into the United States. Therefore, the importation of these taxa
is not authorized pending the completion of a pest risk analysis,
except as provided in Sec. 319.37-2(c). Lists of these taxa may be
found on the Internet at http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37_nappra.shtml. There are two lists of taxa
whose importation is not authorized pending pest risk analysis: A list
of taxa of plants for planting that are quarantine pests, and a list of
taxa of plants for planting that are hosts of quarantine pests. For
taxa of plants for planting that have been determined to be quarantine
pests, the list includes the

[[Page 31209]]

names of the taxa. For taxa of plants for planting that are hosts of
quarantine pests, the list includes the names of the taxa, the foreign
places from which the taxa's importation is not authorized, and the
quarantine pests of concern.
(b) Addition of taxa. A taxon of plants for planting may be added
to one of the lists of taxa not authorized for importation pending pest
risk analysis under this section as follows:
(1) Data sheet. APHIS will publish in the Federal Register a notice
that announces our determination that a taxon of plants for planting is
either a quarantine pest or a host of a quarantine pest. This notice
will make available a data sheet that details the scientific evidence
APHIS evaluated in making the determination that the taxon is a
quarantine pest or a host of a quarantine pest. The data sheet will
include references to the scientific evidence that APHIS used in making
the determination. In our notice, we will provide for a public comment
period of a minimum of 60 days on our addition to the list.
(2) Response to comments. (i) APHIS will issue a notice after the
close of the public comment period indicating that the taxon will be
added to the list of taxa not authorized for importation pending pest
risk analysis if:
(A) No comments were received on the data sheet;
(B) The comments on the data sheet revealed that no changes to the
data sheet were necessary; or
(C) Changes to the data sheet were made in response to public
comments, but the changes did not affect APHIS' determination that the
taxon poses a risk of introducing a quarantine pest into the United
States.
(ii) If comments present information that leads us to determine
that the taxon does not pose a risk of introducing a quarantine pest
into the United States, APHIS will not add the taxon to the list of
plants for planting whose importation is not authorized pending pest
risk analysis. APHIS will issue a notice giving public notice of this
determination after the close of the comment period.
(c) Criterion for listing a taxon of plants for planting as a
quarantine pest. A taxon will be added to the list of taxa whose
importation is not authorized pending pest risk analysis if scientific
evidence causes APHIS to determine that the taxon is a quarantine pest.
(d) Criteria for listing a taxon of plants for planting as a host
of a quarantine pest. A taxon will be added to the list of taxa whose
importation is not authorized pending pest risk analysis if scientific
evidence causes APHIS to determine that the taxon is a host of a
quarantine pest. The following criteria must be fulfilled in order to
make this determination:
(1) The plant pest in question must be determined to be a
quarantine pest; and
(2) The taxon of plants for planting must be determined to be a
host of that quarantine pest.
(e) Removing a taxon from the list of taxa not authorized pending
pest risk analysis. (1) Requests to remove a taxon from the list of
taxa not authorized pending pest risk analysis must be made in
accordance with Sec. 319.5 of this part. APHIS will conduct a pest
risk analysis in response to such a request. The pest risk analysis
will examine the risk associated with the importation of that taxon.
(2) If the pest risk analysis supports a determination that
importation of the taxon be prohibited or allowed subject to special
restrictions, such as a systems approach, treatment, or postentry
quarantine, APHIS will publish a proposed rule making the pest risk
analysis available to the public and proposing to take the action
recommended by the pest risk analysis.
(3) If the pest risk analysis supports a determination that
importation of the taxon be allowed subject to the general restrictions
of this subpart, APHIS will publish a notice announcing our intent to
remove the taxon from the list of taxa whose importation is not
authorized pending pest risk analysis and making the pest risk analysis
supporting the taxon's removal available for public review.
(i) APHIS will issue a notice after the close of the public comment
period indicating that the importation of the taxon will be subject
only to the general restrictions of this subpart if:
(A) No comments were received on the pest risk analysis;
(B) The comments on the pest risk analysis revealed that no changes
to the pest risk analysis were necessary; or
(C) Changes to the pest risk analysis were made in response to
public comments, but the changes did not affect the overall conclusions
of the analysis and the Administrator's determination that the
importation of the taxon does not pose a risk of introducing a
quarantine pest into the United States.
(ii) If information presented by commenters indicates that the pest
risk analysis needs to be revised, APHIS will issue a notice after the
close of the public comment period indicating that the importation of
the taxon will continue to be listed as not authorized pending pest
risk analysis while the information presented by commenters is analyzed
and incorporated into the pest risk analysis. APHIS will subsequently
publish a new notice announcing the availability of the revised pest
risk analysis.
(4) APHIS may also remove a taxon from the list of taxa whose
importation is not authorized pending pest risk analysis when APHIS
determines that the evidence used to add the taxon to the list was
erroneous (for example, involving a taxonomic misidentification).

Sec. 319.37-4 [Amended]

0
7. In Sec. 319.37-4, paragraph (d)(2) is amended by adding the words
``; is not listed as not authorized pending pest risk analysis, as
provided in Sec. 319.37-2a'' after the citation ``Sec. 319.37-2''.

Sec. 319.37-5 [Amended]

0
8. In Sec. 319.37-5, paragraph (i) introductory text is amended by
removing the words ``plant diseases'' and adding the words ``quarantine
pests'' in their place.

Sec. 319.37-7 [Amended]

0
9. Section 319.37-7 is amended as follows:
0
a. In paragraph (c)(2)(iii), by removing the words ``exotic pests'' and
adding the words ``quarantine pests'' in their place.
0
b. In paragraph (c)(2)(iv), by removing the words ``plant pests that
are not known to exist in the United States and'' and adding the words
``quarantine pests'' in their place.
0
c. In paragraph (d)(5), by removing the words ``an injurious plant
disease, injurious insect pest, or other plant pest'' and adding the
words ``a quarantine pest'' in their place.
0
d. In paragraphs (f)(1) and (f)(2), by removing the words ``plant
pests'' each time they occur and adding the words ``quarantine pests''
in their place.
0
e. In paragraphs (f)(1) and (f)(2), by removing the words ``plant
pest(s)'' each time they occur and adding the words ``quarantine
pest(s)'' in their place.

Sec. 319.37-8 [Amended]

0
10. Section 319.37-8 is amended as follows:
0
a. In paragraph (e)(2) introductory text, by removing the words
``disease and pests'' and adding the words ``quarantine pests'' in
their place.
0
b. In paragraph (e)(2)(ii), by removing the words ``plant pests and
diseases'' and adding the words ``quarantine pests'' in their place;
and by removing the words ``injurious plant diseases, injurious insect
pests, and other plant pests'' and adding the words ``quarantine
pests'' in their place.

[[Page 31210]]

0
c. In paragraph (e)(2)(iv)(B), by adding the word ``quarantine'' before
the word ``pests''.
0
d. In paragraph (e)(2)(vii),'' by removing the words ``plant pests''
and adding the words ``quarantine pests'' in their place.
0
e. In paragraph (e)(2)(viii), by removing the words ``plant pests and
diseases'' and adding the words ``quarantine pests'' in their place.
0
f. In paragraph (e)(2)(xi)(B), by removing the words ``plant pests''
and adding the words ``quarantine pests'' in their place.
0
g. In paragraphs (f)(3)(i), (f)(3)(vii), (f)(3)(viii), and (f)(4), by
removing the words ``injurious plant diseases, injurious insect pests,
and other plant pests'' each time they occur and adding the words
``quarantine pests'' in their place.
0
11. Section 319.37-12 is revised to read as follows:

Sec. 319.37-12 Prohibited articles and articles whose importation is
not authorized pending pest risk analysis accompanying restricted
articles.

A restricted article for importation into the United States may not
be packed in the same container as an article whose importation into
the United States is prohibited by this subpart or in the same
container as an article whose importation is not authorized pending
pest risk analysis under Sec. 319.37-2a of this subpart.

Sec. 319.37-13 [Amended]

0
12. Section 319.37-13 is amended as follows:
0
a. In paragraph (b), by removing the words ``injurious plant disease,
injurious insect pest, or other plant pest, new to or not theretofore
known to be widely prevalent or distributed within and throughout the
United States'' and adding the words ``quarantine pests'' in their
place; and by removing the words ``injurious plant diseases, injurious
insect pests, or other plant pests'' and adding the words ``quarantine
pests'' in their place.
0
b. In paragraph (c), by removing the words ``pests and Federal noxious
weeds'' and adding the words ``quarantine pests'' in their place.

Done in Washington, DC, this 18th day of May 2011.
Ann Wright,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2011-13054 Filed 5-26-11; 8:45 am]
BILLING CODE 3410-34-P