[Federal Register Volume 78, Number 80 (Thursday, April 25, 2013)]
[Proposed Rules]
[Pages 24634-24663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09737]
[[Page 24633]]
Vol. 78
Thursday,
No. 80
April 25, 2013
Part VI
Department of Agriculture
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Animal and Plant Health Inspection Service
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7 CFR Parts 319 and 340
Restructuring of Regulations on the Importation of Plants for
Planting; Proposed Rules
Federal Register / Vol. 78 , No. 80 / Thursday, April 25, 2013 /
Proposed Rules
[[Page 24634]]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 319 and 340
[Docket No. APHIS-2008-0011]
RIN 0579-AD75
Restructuring of Regulations on the Importation of Plants for
Planting
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to restructure our regulations governing the
importation of plants for planting. In the proposed structure,
restrictions on the importation of specific types of plants for
planting would no longer be found in the regulations, but instead would
be found in the Plants for Planting Manual. We would change those
restrictions after taking public comment through notices published in
the Federal Register. As part of this restructuring, we would group
together restrictions in the plants for planting regulations that apply
to the importation of most or all plants for planting, and we would add
general requirements for the development of integrated pest risk
management measures that we would use to mitigate the risk associated
with the importation of a specific type of plants for planting. We
would also amend our foreign quarantine regulations to remove various
provisions regarding the importation of specific types of plants for
planting that are not currently subject to the general plants for
planting regulations; these provisions would also be found in the
Plants for Planting Manual. This action would not make any major
changes to the restrictions that currently apply to the importation of
plants for planting. These changes would make restrictions on the
importation of specific types of plants for planting easier for readers
to find and less cumbersome for us to change.
DATES: We will consider all comments that we receive on or before June
24, 2013.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2008-0011-0001.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2008-0011, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2008-
0011 or in our reading room, which is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Ms. Heather Coady, Regulatory Policy
Specialist, Plants for Planting Policy, PPQ, APHIS, 4700 River Road
Unit 133, Riverdale, MD 20737; (301) 851-2076.
SUPPLEMENTARY INFORMATION:
Background
Under the Plant Protection Act (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 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--Plants for Planting,'' Sec. Sec.
319.37 through 319.37-14 (referred to below as the regulations),
restrict the importation of plants for planting. Plants for planting is
defined in Sec. 319.37-1 as plants intended to remain planted, to be
planted or replanted. Plant is defined in that section as any plant
(including any plant part) 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.
Current Regulations
The current regulations can be briefly summarized as follows:
Plants for planting that cannot be feasibly inspected, treated, or
handled to prevent quarantine pests that may accompany them from being
introduced into the United States are listed in Sec. 319.37-2(a) or
(b) of the regulations as prohibited articles. Plants for planting
whose importation poses a risk of introducing a quarantine pest into
the United States, and which need to be further analyzed to determine
appropriate mitigations for that risk, are listed as not authorized
pending pest risk analysis (NAPPRA) in accordance with the process in
Sec. 319.37-2a of the regulations. Prohibited articles and NAPPRA
articles may not be imported into the United States, unless imported by
the U.S. Department of Agriculture (USDA) for experimental or
scientific purposes under safeguards specified in the permit issued for
the importation of the articles.
Other plants for planting are referred to in the regulations as
restricted articles. Restricted articles may be imported into the
United States if they are imported in compliance with conditions that
may include permit and phytosanitary certificate requirements,
inspection, treatment, postentry quarantine, special inspection and
certification requirements, or combinations of these safeguards.
Some restrictions apply to the importation of most or all plants
for planting. Under Sec. 319.37-3(a)(5), lots of 13 or more articles
(other than seeds, bulbs, or sterile cultures of orchid plants) from
any country or locality except Canada may be imported into the United
States only after issuance of a written permit. This means that most
plants for planting are imported with a permit.
All plants for planting imported into the United States must be
presented for inspection. Plants for planting that are required to be
imported under a written permit under Sec. 319.37-3(a)(1) through
(a)(6) and that are not from Canada must be imported or offered for
importation at a USDA plant inspection station.\1\ Such stations are
listed in Sec. 319.37-14. Plants for planting that are offered for
inspection at a USDA plant inspection station are inspected by Plant
Protection and Quarantine (PPQ) inspectors. Plants for planting that
are not required to be inspected at a USDA plant inspection station may
be presented for inspection either at one of the ports listed in Sec.
319.37-14 or at a Customs designated port of entry indicated in 19 CFR
101.3(b)(1). Such plants are inspected by the Department of Homeland
Security's Bureau of Customs and Border Protection.
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\1\ Small lots of seed imported in accordance with Sec. 319.37-
4(d) are exempt from this requirement.
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After inspection, the plants may be allowed entry into the United
States (with treatment, if necessary), destroyed, or reexported,
depending on
[[Page 24635]]
the results of the inspection. As noted earlier, most shipments of
plants for planting are required to be imported under a written permit
under Sec. 319.37-3(a)(5) and are thus inspected at USDA plant
inspection stations.
In addition, except for bulbs from the Netherlands, Canadian
greenhouse-grown plants, small lots of seed, and certain seeds from
Canada (as described in Sec. 319.37-4(a)(4), (c), (d), and (e),
respectively), the regulations require that a phytosanitary certificate
issued by the exporting country's national plant protection
organization (NPPO) accompany all restricted articles imported into the
United States.
Some types of plants for planting may only be imported in
accordance with requirements specific to those plants. These
requirements are found in Sec. Sec. 319.37-5 through 319.37-7 of the
regulations. Section 319.37-8 prohibits the importation of plants for
planting in growing media, except for specified growing media. In
addition, Sec. 319.37-8 provides for the importation of certain
combinations of growing media and taxa if the plants for planting are
produced and inspected according to specific requirements in that
section.
In addition to setting out the requirements for the importation of
plants for planting in the regulations, APHIS also makes them available
in the Plants for Planting Manual, which is commonly used as a
reference by importers and port inspectors, among others. The Plants
for Planting Manual is available on the Web at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/plants_for_planting.pdf or by contacting the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, 4700 River Road
Unit 133, Riverdale, MD 20737-1236. Local PPQ offices also typically
have copies available for review.
Summary of Proposed Changes
In this document, we are proposing to restructure the plants for
planting regulations to make them simpler and easier to read and to
allow for more timely changes to the restrictions on the importation of
specific types of plants for planting. To accomplish these goals, we
would make the following changes:
We would remove provisions from other subparts in 7 CFR
part 319 that regulate the importation of plants for planting and thus
consolidate the requirements for importation of all plants for planting
under the plants for planting regulations.
We would add most of the plants for planting that are
listed as prohibited in Sec. 319.37-2(a) to the list of plants for
planting whose importation is NAPPRA in accordance with current Sec.
319.37-2a. Other prohibitions would be reflected in the Plants for
Planting Manual. This document is currently used by importers and
inspectors as a reference regarding restrictions on the importation of
plants for planting.
Within the plants for planting regulations, we would group
together the requirements that apply to the importation of all or most
plants for planting.
We are proposing that restrictions on the importation of
specific types of plants for planting would no longer be found in the
regulations, but instead would be found in the Plants for Planting
Manual. We are proposing to change these restrictions after taking
public comment on notices published in the Federal Register, rather
than publishing proposed rules and final rules as we currently do.
Specifically, we would publish a notice announcing our determination
that it is necessary to add, change, or remove restrictions on the
importation of a specific type of plants for planting and make
available a document describing those restrictions and why they are
necessary. We would allow for public comment on the notice and the
document it makes available. We would then respond to any comments we
receive in a second notice, and implement the restrictions if our
determination remains unchanged. (This process is described in more
detail later in this document.)
We would remove several lists of approved items (for
example, the lists of approved growing media, packing materials, and
ports of entry) from the regulations and instead provide these lists to
the public in the Plants for Planting Manual. We would update these
lists, when necessary, using a process similar to the one we are
proposing to use to update restrictions on the importation of specific
types of plants for planting.
We are proposing to establish a framework for the use of
integrated pest management measures in the production of specific types
of plants for planting for importation into the United States, when the
pest risk associated with the importation of a type of plants for
planting can only be addressed through the use of integrated measures.
We are also proposing several minor changes to the
regulations to improve their clarity and reflect current program
operations.
We are not proposing to make major changes to the restrictions that
currently apply to the importation of plants for planting. This
proposal is directed towards making the regulations easier to use and
to implement. Our proposed changes are discussed in detail below.
Removal of Restrictions on the Importation of Specific Types of Plants
for Planting in Other Subparts
In addition to the plants for planting regulations, part 319
contains several subparts that regulate the importation of all plants
and plant parts of a specific type, both plants for planting and plants
for consumption, decoration, or other uses. Specifically, plants for
planting and plants for other uses are regulated in subparts pertaining
to the importation of cotton; sugarcane; corn; Indian corn or maize,
broomcorn, and related plants; rice; wheat; coffee; Khapra beetle host
articles; and gypsy moth host articles from Canada. In addition, Sec.
319.19 separately prohibits the importation of citrus plants for
planting (specifically, the subfamilies Aurantioideae, Rutoideae, and
Toddalioideae of the family Rutaceae).
To reflect this, the plants for planting regulations limit their
scope to restricted articles of plants for planting. In Sec. 319.37-1,
restricted article is defined as any regulated plant, root, bulb, seed,
or other plant product capable of propagation, excluding the following:
Prohibited articles;
Articles whose importation is NAPPRA under Sec. 319.37-
2a;
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, which regulates
the importation and interstate movement of plant taxa designated as
noxious weeds.
(Regulated plant is separately defined to indicate exactly what
organisms are considered plants for the purposes of the regulations.)
The definition of restricted article excludes the plants for planting
whose importation is regulated under the subparts mentioned earlier,
except the Khapra beetle and gypsy moth subparts.
The restrictions on the importation of plants for planting under
some of these subparts differ from the restrictions that would be
placed on their importation under the general plants for planting
regulations. For example, while the plants for planting regulations
require all imported articles to be accompanied by a phytosanitary
certificate, many of the other subparts do not. We consider a
phytosanitary certificate (as defined in Sec. 319.37-1) to be an
essential means of determining the risk associated with plants for
planting.
In general, we have determined that the restrictions in the plants
for planting regulations are necessary to mitigate the
[[Page 24636]]
risks associated with the importation of all plants for planting, not
just those that are currently defined as restricted articles. In
addition, the current structure of the regulations is confusing for the
reader, who may have to consult several subparts to determine which
restrictions apply to the importation of a specific type of plants for
planting. Therefore, we are proposing to amend the other subparts in
part 319 to indicate that they do not regulate the importation of
plants for planting and to remove provisions in those subparts that
regulate the importation of plants for planting. Restrictions on the
importation of articles other than plants for planting would not be
affected in any way by these proposed changes.
These amendments would make it unnecessary to have a definition of
restricted article in the regulations; the term ``plants for planting''
would include all articles subject to the restrictions in the plants
for planting regulations. Therefore, we are proposing to remove the
definition of restricted article from Sec. 319.37-1 and to remove
references to that term from the regulations. Instead, the regulations
would simply refer to restrictions on the importation of plants for
planting.
We are proposing to make several changes to the current definition
of plants for planting:
To make it clear that the scope of the regulations
includes only regulated plants, we are proposing to amend the
definition of plants for planting to refer specifically to regulated
plants.
The definition of restricted article refers to articles
for or capable of propagation. This allows us to regulate the
importation of commodities like birdseed, which is not intended for
propagation but is distributed by consumers in a manner that could lead
to its propagation. We are proposing to amend the definition of plants
for planting to include plants capable of propagation, so that we would
retain the discretion to regulate such plants.
We do not believe it is necessary to state that plants for
planting are intended to remain planted, to be planted or replanted
when the definition refers to plants for or capable of propagation.
Referring simply to plants that are for planting or capable of being
planted would cover the relevant possibilities.
The definition of plant indicates that the term includes
any plant part. The definition of plants for planting incorporates the
term plant and thus includes plant parts as well. However, since the
regulations will now refer primarily to ``plants for planting,'' we
believe it would be useful to clarify in the definition of plants for
planting that this term also includes any parts of a plant.
The revised definition of plants for planting would read:
``Regulated plants (including any plant parts) that are for planting or
capable of being planted.''
We would amend the other subparts that currently regulate the
importation of specific taxa of plants for planting as follows:
Subpart--Foreign Cotton and Covers, which consists of
Sec. Sec. 319.8 through 319.8-26, regulates the importation of
cottonseed, which can either be used for planting or for processing. We
would add a new paragraph to Sec. 319.8 indicating that the
importation of cotton plants (including any plant parts) that are for
planting or capable of being planted is restricted in ``Subpart--Plants
for Planting.'' In addition, to make the scope of the subpart clear, we
would amend the definition of cottonseed in Sec. 319.8-1 to indicate
that it only includes cottonseed intended for processing or
consumption.
Subpart--Sugarcane, which consists of Sec. Sec. 319.15
and 319.15a, restricts the importation of all parts of the sugarcane
plant, including sugarcane for planting. We would add a new paragraph
to Sec. 319.15 indicating that the importation of sugarcane plants and
plant parts capable of remaining planted, being planted or replanted is
restricted in ``Subpart--Plants for Planting.''
We would remove Subpart--Citrus Canker and Other Citrus
Diseases, which consists of Sec. 319.19. As noted earlier, this
subpart prohibits the importation of plants for planting from
subfamilies Aurantioideae, Rutoideae, and Toddalioideae of the family
Rutaceae to prevent the introduction of citrus canker and other citrus
diseases. As the scope of this subpart is limited to plants for
planting, there is no need to retain any of its provisions as part of
this consolidation. In addition, as part of this change, we would
prohibit the importation of the other subfamily of Rutaceae,
Flindersioideae. Although it is not specified in Sec. 319.19 as being
prohibited for importation, the importation of plants for planting from
this subfamily would also be a pathway for the introduction of citrus
canker and other citrus diseases, and we have prohibited the
importation of Flindersioideae plants for planting in the past.
Subpart--Corn Diseases, which consists of Sec. Sec.
319.24 through 319.24-5, restricts the importation of Indian corn and
maize and related plants from certain countries. We would add a new
paragraph to Sec. 319.24 indicating that the importation of corn
plants (including any plant parts) that are for planting or capable of
being planted is restricted in ``Subpart--Plants for Planting.''
Subpart--Indian Corn or Maize, Broomcorn, and Related
Plants, which consists of Sec. Sec. 319.41 through 319.41-6, also
restricts the importation of Indian corn and maize and related plants
from various countries. We would add a new paragraph to Sec. 319.41
indicating that the importation of plants (including any plant parts)
of any of the taxa listed as hosts of quarantine pests in paragraph (b)
of that section that are for planting or capable of being planted is
restricted in ``Subpart--Plants for Planting.'' In addition, we would
make a change to reflect historical prohibitions that are not set out
in this subpart. Historically, PPQ has prohibited the importation of
corn seed of the genera Echinochloa, Eleusine, Miscanthus, Panicum,
Pennisetum, Setaria, and Tripsacum from areas including Africa,
Australia, Brazil, Bulgaria, Japan and adjacent islands, Korea, New
Zealand, Oceania, the People's Republic of China, Southeast Asia,
Taiwan, and the former Soviet Union, but this prohibition has not been
reflected in the regulations. We would add seed of these taxa to the
NAPPRA category as part of this action. We have prepared a pest risk
analysis (PRA) in support of this action that details the quarantine
pests associated with seed of these genera. The PRA can be viewed on
Regulations.gov (see ADDRESSES above for instructions on accessing
Regulations.gov). A copy of the PRA can also be requested from the
person listed under FOR FURTHER INFORMATION CONTACT. We welcome public
comment on this proposed action.
Subpart--Rice, which consists of Sec. Sec. 319.55 through
319.55-7, restricts the importation of seed or paddy rice, rice straw,
and rice hulls. We would add a new paragraph to Sec. 319.55 indicating
that the importation of seed and paddy rice, which is always used for
planting, is restricted in ``Subpart--Plants for Planting.'' In
addition, we would remove references to prohibitions or restrictions on
the importation of seed and paddy rice. Specifically, we would remove
the general prohibition on the importation of seed and paddy rice in
Sec. 319.55(a) and (b), the permit application requirement for seed
and paddy rice in Sec. 319.55-2(a), the port of entry requirements in
Sec. 319.55-3(a) and (c), the inspection and disinfection requirements
in Sec. 319.55-6(a), and the requirements for importation by mail in
Sec. 319.55-7.
Subpart--Wheat Diseases, which consists of Sec. Sec.
319.59-1 through 319.59-
[[Page 24637]]
4, restricts the importation of wheat articles from various countries.
Articles regulated under the subpart are defined as ``host crops'' in
Sec. 319.59-1. In addition, the term seed is defined as wheat and
triticale used for propagation. We would add a new paragraph to Sec.
319.59-2 indicating that the importation of host crops, including seed,
and any other plant parts that are for planting or capable of being
planted is restricted in ``Subpart--Plants for Planting.'' We would
also amend the definition of grain in Sec. 319.59-1 to indicate that
it includes only articles not for planting. We would also remove
provisions related to the importation of seed in Sec. 319.59-3(a) and
Sec. 319.59-4(a).
Subpart--Wheat Diseases also contains specific provisions regarding
the importation of Triticum spp. plants, which are used for planting.
We would remove the general prohibition on the importation of Triticum
spp. plants in Sec. 319.59-2(a) and the exception in Sec. 319.59-
2(b).
Subpart--Coffee, which consists of Sec. Sec. 319.73-1
through 319.73-4, regulates the importation of unroasted coffee, which
can be used either for planting or processing. To make the scope of the
subpart clear, we would amend the definition of unroasted coffee in
Sec. 319.73-1 to indicate that it only includes unroasted coffee
intended for processing. Paragraph (a)(2) of Sec. 319.73-2 lists
coffee plants and leaves as articles whose importation is prohibited
under Subpart--Coffee; we would revise paragraph (a)(2) so that it
includes coffee leaves only. In addition, paragraph (b) of Sec.
319.73-2 states that, due to the risk of Mediterranean fruit fly and
other injurious insects, seeds of all kinds when in pulp, including
coffee berries or fruits, are prohibited importation into all parts of
the United States by Sec. 319.37-2(a), except as provided in Sec.
319.37-2(c). We are proposing to replace this paragraph with a general
statement indicating that the importation of any coffee plants
(including bare seeds, seeds in pulp, and any other plant parts) that
are for planting or capable of being planted is restricted in
``Subpart--Plants for Planting.''
Although the plants for planting regulated under the Khapra beetle
and gypsy moth subparts are not excluded from the current definition of
restricted article, we believe it is necessary to amend these subparts
as well to clarify that the importation of plants for planting is
governed by the plants for planting regulations.
Subpart--Khapra Beetle, which consists of Sec. Sec.
319.75 through 319.75-9, regulates the importation of articles of
several different types to prevent the introduction of Khapra beetle
into the United States. Currently, this subpart includes a definition
of nursery stock (a synonym for ``plants for planting'' formerly used
in the plants for planting regulations) and several provisions
regulating the importation of nursery stock and plants. We are
proposing to remove the definition of nursery stock in Sec. 319.75-1
and the requirements for inspection and certification of nursery stock,
plants, roots, and bulbs in Sec. 319.75-9. (These requirements also
refer to seed, but only seed not for propagation is restricted under
this subpart.) In Sec. 319.75-2, which lists restricted articles,
footnote 1 states that the importation of certain restricted articles
is subject to prohibitions or restrictions found elsewhere in 7 CFR
part 319. We would add to this footnote a statement that the
importation of any restricted articles that are for planting or capable
of being planted is restricted under the plants for planting
regulations.
Subpart--Gypsy Moth Host Material from Canada, which
consists of Sec. Sec. 319.77-1 through 319.77-5, regulates the
importation of several different types of articles to prevent the
introduction of gypsy moth. Section 319.77-2 lists trees with roots and
shrubs with roots as regulated articles; we would remove those articles
from the list, as they are plants for planting. We would retain trees
without roots in the list of regulated articles, as such trees are
typically not used for planting. (A common example is Christmas trees.)
Section 319.77-4 sets out conditions for the importation of restricted
articles, including trees with roots and shrubs with roots. We would
remove the references to those plants. In addition, footnote 1 to Sec.
319.77-4 states that trees and shrubs from Canada may be subject to
additional restrictions under the plants for planting regulations; we
would remove this statement, as the importation of trees with roots and
shrubs with roots from Canada would only be subject to the plants for
planting regulations. We would retain the statement that trees may be
subject to additional restrictions under Subpart--Logs, Lumber, and
Other Unmanufactured Wood Articles, as the importation of trees without
roots would still potentially be regulated under that subpart.
None of the other subparts in 7 CFR part 319 regulates the
importation of plants for planting. Of the subparts that regulate the
importation of articles, Subpart--Logs, Lumber, and Other
Unmanufactured Wood Articles and Subpart--Fruits and Vegetables clearly
indicate that they only regulate articles not for propagation. (We are
proposing to update the reference to the plants for planting
regulations in Sec. 319.40-2(c) to refer to their newer name,
``Subpart--Plants for Planting.'' We are proposing the same change in
Sec. 340.0.) However, Subpart--Cut Flowers, which consists of
Sec. Sec. 319.74-1 through 319.74-4, does not clearly indicate that it
does not regulate the importation of plants for planting. Cuttings of
flowers may also be intended for planting, in which case they should be
and are regulated under the plants for planting regulations. Therefore,
we are proposing to amend the definition of cut flower in Sec. 319.74-
1 to specify that cut flowers regulated under that subpart are not for
planting.
As mentioned earlier, plants for planting that have been allowed to
be imported under these subparts would now be subject to the general
requirements of the plants for planting regulations, which is
appropriate given the generally high risk associated with the
importation of plants for planting. Any specific requirements for
plants for planting whose importation is regulated under these subparts
would remain unchanged.
These changes would harmonize our approach to mitigating the risk
associated with imported plants for planting and make the regulations
easier to use.
Adding Prohibited Plants for Planting to the NAPPRA List
The regulations in Sec. 319.37-2(a) list types of plants for
planting whose importation from specific areas is prohibited because
they are hosts of quarantine pests. The prohibited plants are listed in
a table that indicates the plants subject to the prohibition, the
foreign places from which their importation is prohibited, and the
plant pest(s) that are the cause of the prohibition. The types of
plants for planting in this list have been added to the list based on a
risk evaluation. Some of the types of plants for planting listed are
simply listed as prohibited; others are prohibited unless imported in
accordance with special inspection and certification requirements in
Sec. 319.37-5.
Paragraph (b) of Sec. 319.37-2(b) prohibits the importation of
certain additional types of plants for planting from all foreign
countries except Canada based on size and age criteria. The importation
of plants that do not meet these size and age criteria is prohibited
because larger and older plants pose a higher pest risk than younger
and smaller ones, and because it is impractical to inspect the listed
plants
[[Page 24638]]
for quarantine pests when they are large and old.
The regulations in Sec. 319.37-2a provide a process for listing
the importation of taxa of plants for planting as not authorized
pending pest risk analysis (NAPPRA), based on the risk of introducing a
quarantine pest into the United States through the importation of the
taxa. Such taxa are commonly referred to as ``NAPPRA taxa,'' and the
lists of such taxa as the ``NAPPRA lists.'' The regulations do not set
out the NAPPRA lists, but rather provide criteria and a process for
adding taxa to the NAPPRA lists; the lists themselves are maintained on
the PPQ Web site.\2\
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\2\ At http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37_nappra.shtml.
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We are proposing to remove the prohibited types of plants for
planting in paragraphs (a) and (b) of Sec. 319.37-2 from the
regulations. We would add most of the types of plants for planting
listed in paragraph (a) to the NAPPRA list of plants for planting that
are hosts of quarantine pests.
We believe the existence of two categories of plants for planting
whose importation into the United States is not allowed could confuse
readers. For example, the importation of Cedrus spp. from Europe is
prohibited in Sec. 319.37-2(a) because Douglas fir canker and seedling
disease, both quarantine pest pathogens, are present in Europe, and
Cedrus spp. are hosts 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 NAPPRA, that person might not think to check the list of
prohibited articles in Sec. 319.37-2(a) in order to determine whether
the importation of Cedrus spp. is prohibited from Europe, and thus
might import or apply for an import permit for Cedrus spp. grown in
(for example) Denmark. This change would eliminate the potential for
such confusion.
In addition, adding the types of plants for planting whose
importation is prohibited from Sec. 319.37-2(a) to the NAPPRA list of
hosts of quarantine pests would reflect the fact that, although these
taxa may not be imported, anyone may still request that we conduct a
PRA to determine what quarantine pests are currently associated with
the importation of a prohibited taxon of plants for planting and the
potential consequences of the introduction of those pests into the
United States, as well as whether there are measures available to
mitigate the risks those quarantine pests pose. Although our evaluation
of these factors led us to prohibit the importation of all the taxa in
Sec. 319.37-2(a), this information may change. For example, new
measures may become available to mitigate the risk associated with a
particular pest, meaning that a previously infeasible importation can
now be allowed subject to certain conditions. As another example, the
pest that prompted the prohibition of the taxon may no longer be
considered a quarantine pest, but new pests may be associated with a
currently prohibited taxon that would require mitigation.
Some of the other subparts in 7 CFR part 319 that were discussed
under the previous heading also prohibit the importation of specific
plants for planting. As part of this proposal, we would move those
plants for planting to the NAPPRA list as well.
The functions of paragraph (a) of Sec. 319.37-2 and the list of
NAPPRA taxa that are hosts of quarantine pests are similar--preventing
the importation of taxa that have been determined to pose a risk for
which mitigations have not been identified. However, some types of
plants for planting in Sec. 319.37-2(a) are listed as prohibited if
they are not imported in accordance with special inspection and
certification conditions. For example, Malus spp. are listed as
prohibited from all countries if not meeting the conditions for
importation in Sec. 319.37-5(b), due to a diversity of diseases. This
paragraph allows Malus spp. to be imported from six countries under
specified conditions. The effect of this listed paragraph is to
indicate that Malus spp. can be imported from six countries, subject to
specific conditions, and is prohibited from the remainder of the world.
We would add Malus spp. to the NAPPRA list from all countries but the
six listed in Sec. 319.37-5(b), and we would indicate elsewhere that
importation of Malus spp. from those six countries is only allowed in
accordance with the conditions listed in Sec. 319.37-5(b). We would
handle other such entries in the list of prohibited articles in Sec.
319.37-2(a) in a similar manner.
Similarly, the types of plants for planting listed in paragraph (b)
of Sec. 319.37-2 can be safely imported subject to requirements
specified in that paragraph. In addition, one prohibited type of plants
for planting in Sec. 319.37-2(a), seeds in pulp, does not correspond
to a plant taxon and thus cannot be listed in NAPPRA, as the NAPPRA
lists set out taxa of plants for planting that have been determined to
be quarantine pests or hosts of quarantine pests. In both cases, these
provisions are better thought of not as prohibitions but as
requirements for the importation of these types of plants for planting.
Accordingly, we would not add these types of plants for planting to the
NAPPRA list. We will discuss the distribution of these restrictions
under the next heading in this document.
Adding the prohibited types of plants for planting from Sec.
319.37-2(a) to the NAPPRA list would necessitate additional changes to
current Sec. 319.37-2a.\3\ This section has indicated that taxa on the
NAPPRA lists can be imported under a Departmental permit in accordance
with Sec. 319.37-2(c); as we would remove paragraph (a) from that
section and put the taxa listed there into the NAPPRA category, it is
appropriate to move the Departmental permit provisions to the end of
the NAPPRA section, as a new paragraph (f), with appropriate changes.
---------------------------------------------------------------------------
\3\ In this document, we are proposing to redesignate Sec.
319.37-2a as Sec. 319.37-4. This change is discussed further under
the heading ``Restructuring of the Plants for Planting
Regulations.'' The paragraph designations discussed in this section
would remain the same.
---------------------------------------------------------------------------
Paragraph (e) of Sec. 319.37-2a discusses the removal of taxa from
the NAPPRA list. Paragraph (e)(2) indicates that, if a PRA conducted
for removal of a taxon from the NAPPRA list supports a determination
that importation of the taxon be prohibited, or allowed subject to
special restrictions, APHIS will publish a proposed rule making the PRA
available to the public and proposing to take the action recommended by
the PRA. As we are proposing to remove the lists of prohibited taxa
from the regulations, it would no longer be necessary to publish a
proposed rule if a PRA indicated that it was infeasible to mitigate the
risk associated with the importation of a taxon and thus that the taxon
should not be imported.
Accordingly, we are proposing to amend paragraph (e)(2) to indicate
that, if the PRA indicates that the taxon is a quarantine pest or a
host of a quarantine pest and the Administrator determines that there
are no measures available that adequately mitigate the risk of
introducing a quarantine pest into the United States through the
taxon's importation, we would continue to list the taxon as NAPPRA. We
would take comment on that determination by publishing a notice in the
Federal Register making the PRA available for comment. If comments
cause us to
[[Page 24639]]
change our determination, we would take comment on our new
determination before removing the taxon from the NAPPRA list. If
comments do not cause us to change our determination, we would publish
a second notice responding to the comments and affirming our
determination that the taxon should continue to be listed as NAPPRA.
We are also proposing to add text to clarify the provisions in
paragraph (e). Paragraph (e)(1) describes how we will conduct a PRA in
order to remove a taxon from the NAPPRA list. However, a taxon on the
NAPPRA list of hosts of a quarantine pest will likely be listed as not
authorized for importation from specific areas or countries where that
pest is present. The PRA may not analyze the risks associated with the
importation of the taxon from every country from which the taxon's
importation is not authorized; it is most likely that it would analyze
one country at a time, since we must work with the NPPO of each country
in order to prepare a PRA. Therefore, we are proposing to add the
following explanation to the end of the introductory text of paragraph
(e): ``The pest risk analysis may analyze importation of the taxon from
a specific area, country, or countries, or from all areas of the world.
The conclusions of the pest risk analysis will apply accordingly.''
Paragraph (e)(1) also currently states that the PRA conducted for a
taxon on the NAPPRA list will examine the risk associated with the
importation of that taxon. We are proposing to indicate that the PRA
will examine measures available to mitigate that risk as well. With
this change, the regulations would more completely describe the goals
of the PRA.
In addition, we are proposing one incidental change to current
Sec. 319.37-2a. As discussed under the next heading, we are proposing
to move most of the information regarding the importation of specific
types of plants for planting from the regulations to the Plants for
Planting Manual. Paragraph (a) of Sec. 319.37-2a currently indicates
that the lists of NAPPRA taxa can be found on the PPQ Web site. To
ensure that the Plants for Planting Manual is a comprehensive resource
for information on the importation of specific types of plants for
planting, we are proposing to indicate that the NAPPRA taxa will be
listed in the Plants for Planting Manual as well.
Removing Restrictions on Specific Types of Plants for Planting From the
Regulations; Establishing a Notice-Based Process for Updating Those
Restrictions
Broadly, the regulations on the importation of plants for planting
can be divided into two sets of requirements. As described earlier,
some requirements apply to the importation of all or most plants for
planting. Under Sec. 319.37-3, most consignments of plants for
planting must be imported with a permit. A phytosanitary certificate is
also required for most plants for planting under Sec. 319.37-4. Most
plants for planting may not be imported in growing media under Sec.
319.37-8, although they may be imported in specified packing materials
under Sec. 319.37-9. All imported plants for planting must be marked
and identified in accordance with Sec. 319.37-10, and almost all must
be presented at a port of entry approved for such importation under
Sec. 319.37-14. This is not an exhaustive list, but it gives an idea
of the conditions that apply to the importation of all or most plants
for planting. Where exceptions exist for these requirements, they are
typically based on a risk analysis (for example, the taxa of plants for
planting that are allowed to be imported in growing media, subject to
certain conditions, under Sec. 319.37-8) or on a determination by the
Administrator that there are other equivalent means of satisfying the
requirement (for example, documentation that can be substituted for a
phytosanitary certificate under Sec. 319.37-4).
Some requirements in the plants for planting regulations, in turn,
apply to the importation of specific types of plants for planting.
As previously discussed, in Sec. 319.37-2, paragraph (b) sets out
size and age criteria for the importation of specific types of plants
for planting that are necessary in order to allow for inspection of
those plants.
Section 319.37-5 sets out special inspection and certification
requirements for the importation of specific plant taxa. These include
simple requirements like inspection and certification of freedom from a
quarantine pest by an NPPO, as in the requirements in paragraph (a) of
that section for microscopic inspection of soil in which articles are
grown in certain countries and certification of freedom from potato
cyst nematodes (Globodera rostochiensis and G. pallida). There are
numerous requirements for certification that specific taxa are free
from a plant pathogen or pathogens based on examination or testing of
mother stock. The section also includes relatively complex sets of
requirements to ensure that specific taxa are free from quarantine
pests, such as the program for Pelargonium spp. and Solanum spp. grown
in areas where Ralstonia solanacearum race 3 biovar 2 exists in
paragraph (r) and the program for greenhouse-grown plants from Israel
in paragraph (v).
Section 319.37-6 lists taxa of seeds and bulbs for planting that
may only be imported if treated in accordance with 7 CFR part 305.
Section 319.37-7 lists taxa of plants for planting that may be imported
only into postentry quarantine, for the purposes of observation to
determine whether they are infected with quarantine pests. As noted
earlier, Sec. 319.37-8 makes exceptions from its general prohibition
on the importation of plants for planting in growing media; those
exceptions, and the requirements that must be fulfilled in order to
import the excepted taxa in growing media, are listed in that section.
Importers and inspectors rarely need to, for example, find a list
of plants that are subject to treatment; they want to know what
restrictions apply to the specific plants that they wish to import or
that have been presented for inspection. For port inspectors, we
created the Plants for Planting Manual as a reference. This manual
lists all types of plants for planting to which specific importation
restrictions apply and either the specific restrictions themselves or
the place in the regulations where the restrictions can be found,
allowing inspectors to quickly look up any individual plant to
determine what conditions apply to its importation. Importers and the
public frequently use the Plants for Planting Manual for this purpose
as well.
We are proposing to remove all the restrictions on the importation
of specific types of plants for planting from the regulations and
instead list them in the Plants for Planting Manual. The Plants for
Planting Manual would contain the specific restrictions currently in
the regulations.
As the Plants for Planting Manual and the regulations would
indicate that the specific restrictions in the manual must be complied
with in order to import the specified types of plants for planting into
the United States, there would be no need to reproduce the prohibitions
in Sec. 319.37-2(a) on plants for planting not imported in accordance
with the regulations. However, the size and age restrictions in Sec.
319.37-2(b) would be treated as restrictions on the
[[Page 24640]]
importation of specific types of plants for planting and moved to the
Plants for Planting Manual, and we would include the prohibition
against the importation of seeds in pulp in Sec. 319.37-2(a) by adding
a specific restriction to the Plants for Planting Manual that seeds may
not be imported in pulp. In addition, the restrictions on the
importation of specific types of plants for planting that are currently
found in other subparts in 7 CFR part 319 would be moved to the Plants
for Planting Manual. We are not proposing to change any of the specific
restrictions currently in the plants for planting regulations as part
of this action; this change would be purely administrative.
Moving the specific restrictions to the Plants for Planting Manual
would provide organizational advantages, allowing users of the
regulations to more quickly and easily determine what specific
restrictions apply to the importation of a plant. It also would allow
for the creation of a process in which we publish notices in the
Federal Register to take public comment on additions to, updates to, or
removals of restrictions on the importation of specific types of plants
for planting and make the consequent changes in the Plants for Planting
Manual (commonly referred to as a notice-based process), rather than
our current process of publishing rules in the Federal Register and
updating the regulations themselves.
APHIS uses notice-based processes to accomplish several different
kinds of changes, including allowing the importation of fruits and
vegetables subject to certain conditions (a process described in Sec.
319.56-4), allowing the interstate movement of fruits and vegetables
from Hawaii and U.S. territories subject to certain conditions (Sec.
318.13-4), adding, revising, or removing treatment schedules in the PPQ
Treatment Manual (Sec. 305.3), and, as discussed earlier, adding taxa
of plants for planting to the NAPPRA lists. In a typical notice-based
process, an initial notice is published in the Federal Register that
describes a change we are considering and makes a document providing
the scientific basis for that change available for public comment. For
example, when we determine it necessary to add a taxon to one of the
NAPPRA lists, we publish a notice advising the public of our
determination and provide 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. We solicit public
comments on the notice. After the public comment period, we publish a
second notice that either announces the addition of the taxon to the
NAPPRA list, if the comments we receive do not cause us to change our
determination that the taxon is a quarantine pest or a host of a
quarantine pest, or announcing that the taxon will not be added to the
NAPPRA list.
We added the NAPPRA provisions to the regulations in a final rule
published in the Federal Register on May 27, 2011 (76 FR 31172-31210,
Docket No. APHIS-2006-0011) and effective on June 27, 2011. We expect
that our use of these provisions will eventually result in a large
number of taxa being added to the NAPPRA lists and thus not authorized
for importation. To remove a NAPPRA taxon from its list, as noted
earlier, we will complete a PRA. Currently, if the PRA recommended
specific mitigations as a condition for the importation of the taxon,
we would need to undertake rulemaking to amend the regulations to
provide for such conditions, based on that PRA. Rulemaking entails many
procedural requirements, meaning a typical rulemaking takes from 18
months to 3 years to successfully complete. We anticipate that using a
notice-based process to specify restrictions under which NAPPRA taxa
could be imported would result in measurable time savings over the
rulemaking process while continuing to allow for public input on the
PRA, including the pest risk management measures it recommends.
In addition, quarantine pest conditions in the world are constantly
changing. A set of provisions currently approved to mitigate all
quarantine pest risks associated with the importation of a specific
taxon may not be suitable if a new quarantine pest is introduced into
an area. If well-known measures to mitigate the risk associated with
this quarantine pest exist, often the emergency action we take in
response to the spread of the quarantine pest will be to allow the
continued importation of host taxa from the newly infested area subject
to those measures. However, due to the time-consuming nature of
rulemaking, the regulations often do not reflect in a timely manner the
imposition of those measures, although the Plants for Planting Manual
does. Having a notice-based process in place to revise current taxon-
specific requirement would allow us to give notice of our determination
that revised restrictions are necessary and take public comment on our
determination and our new requirements for the importation of a taxon
in a timely manner.\4\
---------------------------------------------------------------------------
\4\ If the introduction of a quarantine pest into a new area
caused us to determine that the importation of host taxa from that
area should not be authorized, due to the lack of available measures
to mitigate the quarantine pest risk, we would add those taxa to the
NAPPRA category, possibly after issuing a Federal order.
---------------------------------------------------------------------------
Before implementing any final rule with respect to this proposal,
we would of course revise the Plants for Planting Manual, not only to
incorporate all the information about restrictions on specific types of
plants for planting that is currently in the regulations but also to
make it easier to read and use as a reference.
The details of the specific requirements we would remove from the
regulations are discussed later in this document under the heading
``Restructuring of the Plants for Planting Regulations.'' Here we will
describe our proposed Sec. 319.37-20, which would set out a notice-
based process for adding, changing, or removing restrictions on the
importation of specific types of plants for planting.
Paragraph (a) of proposed Sec. 319.37-20 would provide that, in
addition to the general restrictions in the plants for planting
regulations, the Administrator may impose additional restrictions on
the importation of specific types of plants for planting necessary to
effectively mitigate the risk of introducing quarantine pests into the
United States through the importation of those plants for planting.
Additional restrictions may be placed on the importation of the entire
plant or of certain plant parts, as a quarantine pest may not be
associated with all parts of a plant. (Seed is the most common
exception.) A list of the types of plants for planting whose
importation is subject to additional restrictions, and the specific
restrictions that apply to the importation of each type, would be found
in the Plants for Planting Manual. In Sec. 319.37-1, we would define
the Plants for Planting Manual as the document that contains
restrictions on the importation of specific types of plants for
planting, as provided in Sec. 319.37-20, and other information about
the importation of plants for planting as provided in the plants for
planting regulations. The definition would indicate where the Plants
for Planting Manual is available as well.
Paragraph (b) of proposed Sec. 319.37-20 would provide that the
Administrator may determine that it is necessary to add, change, or
remove restrictions on the importation of a specific type of plants for
planting, based on the risk of introducing a quarantine pest through
[[Page 24641]]
the importation of that type of plants for planting. This text would
explicitly indicate that the reason we would impose specific
restrictions is a determination by the Administrator that the
restrictions are necessary to effectively mitigate the risk of
introducing quarantine pests into the United States.
Paragraph (b) would also state that the Administrator will make
such a determination based on the findings of a PRA or on other
scientific evidence. Although we would normally use a PRA to determine
what restrictions are appropriate for a plant's importation, one
example of other scientific evidence we might use is results from
experiments or research conducted on a plant when it is imported under
a Departmental permit.
Paragraph (c) would describe the process for adding, changing, or
removing specific restrictions. Under this process, we would initially
publish in the Federal Register a notice that announces our
determination that it is necessary to add, change, or remove
restrictions on the importation of a specific type of plants for
planting. This notice would make available a document describing the
restrictions that the Administrator has determined are necessary and
how these restrictions will mitigate the risk of introducing quarantine
pests into the United States. (In a PRA, this document would typically
be the risk management section of the PRA.) We would typically make
this document available for comment for 60 days. This would allow the
public to comment both on the quarantine pest risks we have identified
and on the means we have chosen to mitigate them.
After the close of the comment period, we would issue a second
notice. This notice would inform the public of the specific
restrictions, if any, that the Administrator has determined to be
necessary in order to mitigate the risk of introducing quarantine pests
into the United States through the importation of the type of plants
for planting. In response to the information submitted in public
comments, the Administrator might implement the restrictions described
in the document made available by the initial notice, amend the
restrictions in response to public comment, or determine that changes
to existing restrictions are unnecessary.
It is important to note that the Plants for Planting Manual does
not just contain restrictions on the importation of plants for
planting; it also contains explanation of and guidance on how to
fulfill those restrictions, as well as instructions for how to inspect
imported plants for planting, lists of facilities approved to export
plants for planting under certain programs, and other information. We
would not publish a notice in the Federal Register every time we
determine that it is necessary to change something in the Plants for
Planting Manual; we would only do so to add, change, or remove
phytosanitary measures imposed on the importation of specific types of
plants for planting to mitigate the risk of introducing quarantine
pests. For example, we would publish a notice in the Federal Register
to add a requirement that a taxon be produced in a pest-free place of
production, but we would not publish a notice to update the list of
approved pest-free places of production that produce the taxon for
export to the United States.
Paragraph (d) would address types of plants for planting whose
importation is currently subject to specific restrictions. As noted, we
would move these restrictions to the Plants for Planting Manual without
changing them. However, we may need to change them in the future.
Paragraph (d) would indicate that plants for planting whose importation
is currently subject to plant type-specific restrictions in the
regulations would continue to be subject to those restrictions, except
as changed in accordance with the process specified in proposed
paragraph (c).
These changes would necessitate an update to the NAPPRA provisions
in current Sec. 319.37-2a. As discussed earlier, paragraph (e)(2) of
that section currently indicates that, if a PRA conducted for removal
of a taxon from the NAPPRA list 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 PRA available
to the public and proposing to take the action recommended by the PRA.
We discussed earlier our proposed changes to paragraph (e)(2) to
accommodate moving some of the prohibited types of plants for planting
into the NAPPRA category. Since we would no longer publish proposed
rules in order to add restrictions on specific types of plants for
planting, we would add a new paragraph (e)(3) indicating that, if the
PRA supports a determination that importation of the taxon be allowed
subject to plant type-specific restrictions, APHIS would publish a
notice making the PRA available to the public in accordance with the
process in proposed Sec. 319.37-20(c).
We are also proposing to remove specific exceptions to general
restrictions from the regulations and update them through this notice-
based process. For example, paragraph (e) of Sec. 319.37-8 specifies
taxa that may be imported in specified growing media if they meet
certain requirements. We are proposing to remove such lists of types of
plants for planting from the regulations and instead list these plants,
and the conditions that apply to their importation, in the Plants for
Planting Manual. The specific changes we would make are discussed
directly below.
Restructuring of the Plants for Planting Regulations
Consolidating the regulations in 7 CFR part 319 that govern the
importation of plants for planting, removing the term restricted
article, removing the lists of prohibited taxa, and removing all
restrictions on the importation of specific types of plants for
planting would necessitate a restructuring of the plants for planting
regulations. Below we present an outline of the revised plants for
planting regulations and a distribution table, showing where the
provisions of the regulations that we are retaining would be located in
the restructured subpart and where the provisions we are moving would
be found.
General Requirements
Sec. 319.37-1 Notice of quarantine.
Sec. 319.37-2 Definitions.
Sec. 319.37-3 General restrictions on the importation of plants for
planting.
Sec. 319.37-4 Taxa of plants for planting whose importation is not
authorized pending pest risk analysis.
Sec. 319.37-5 Permits.
Sec. 319.37-6 Phytosanitary certificates.
Sec. 319.37-7 Marking and identity.
Sec. 319.37-8 Ports of entry: Approved ports, notification of
arrival, inspection, and refusal of entry.
Sec. 319.37-9 Treatment of plants for planting; costs and charges
for inspection and treatment; treatments applied outside the United
States.
Sec. 319.37-10 Growing media.
Sec. 319.37-11 Packing and approved packing material.
Provisions for Restrictions on Specific Types of Plants for Planting
Sec. 319.37-20 Restrictions on the importation of specific types of
plants for planting.
Sec. 319.37-21 Integrated pest risk management measures.
Sec. 319.37-22 Trust fund agreements.
Sec. 319.37-23 Postentry quarantine.
[[Page 24642]]
Table 1--Proposed Distribution of Current Plants for Planting Regulations
----------------------------------------------------------------------------------------------------------------
Current section Current paragraph(s) Proposed location Notes
----------------------------------------------------------------------------------------------------------------
Sec. 319.37 (notice of (a)................... Removed............... Replaced with Sec. 319.37-
quarantine). 1(a) and (b).
(b)................... Sec. 319.37-8(d) ...........................
(c)................... Sec. 319.37-8(e) ...........................
Footnotes 1 and 2..... Sec. 319.37-1(e) and ...........................
(f)
Sec. 319.37-1 (definitions)...... ...................... Sec. 319.37-2....... Definitions of terms no
longer used would be moved
to the Plants for Planting
Manual; definitions of
terms used in new
provisions would be added.
Sec. 319.37-2 (prohibited (a) and (b)........... Removed............... Prohibited taxa would be
articles). moved to NAPPRA category
and Plants for Planting
Manual (as discussed
earlier).
(c)................... Sec. 319.37-4(f).... Would be changed to reflect
NAPPRA category
Sec. 319.37-2a (NAPPRA).......... ...................... Sec. 319.37-4....... Changes to this section
were discussed in detail
earlier.
Sec. 319.37-3 (permits).......... (a)................... Sec. 319.37-5(a).... Would be converted from a
list of types of plants
for planting that require
a permit to a general
requirement for a permit,
with exceptions in the
Plants for Planting
Manual.
(b) through (f)....... Sec. 319.37-5(b) Minor updates.
through (f).
Sec. 319.37-4 (phytosanitary (a)................... Sec. 319.37-6(a).... Amended to reflect changes
certificates). elsewhere in section.
(b)................... Sec. 319.37-8(c) ...........................
(c)................... Removed............... Would be moved to Plants
for Planting Manual.
(d)................... Sec. 319.37-6(b).... ...........................
(e)................... Removed............... Would be moved to Plants
for Planting Manual.
Sec. 319.37-5 (inspection and ...................... Removed............... Would be moved to the
certification). Plants for Planting
Manual.
Sec. 319.37-6 (treatment)........ ...................... Removed...............
Sec. 319.37-7 (postentry (a)................... Sec. 319.37-23(a)... Table of restricted taxa in
quarantine). (a) and list of taxa in
(b) would be moved to the
Plants for Planting
Manual.
(b)................... Removed...............
(c) and (d)........... Sec. 319.37-23(b) Paragraphs would be greatly
and (c). simplified.
(e) and (f)........... Sec. 319.37-23(d) ...........................
and (e)
Sec. 319.37-8 (growing media).... (a)................... Sec. 319.37-10(a) ...........................
(b)................... (b)................... List of articles from
Canada that cannot be
imported in growing media
would be moved to Plants
for Planting Manual.
(c) and (d)........... (c)................... Approved growing media
would be moved to Plants
for Planting Manual.
(e)................... (d)................... Lists of approved growing
media and taxa that may be
imported in growing media
would be moved to Plants
for Planting Manual.
Sec. 319.37-9 (packing materials) ...................... Sec. 319.37-11(b)... List of approved packing
materials would be moved
to the Plants for Planting
Manual.
Sec. 319.37-10 (marking and ...................... Sec. 319.37-5....... Minor changes proposed.
identity).
Sec. 319.37-11 (arrival ...................... Sec. 319.37-8(b) ...........................
notification).
Sec. 319.37-12 (prohibited and ...................... Sec. 319.37-11(a) ...........................
restricted articles).
Sec. 319.37-13 (treatment outside ...................... Sec. 319.37-9....... Minor changes proposed
the United States).
Sec. 319.37-14 (ports of entry).. ...................... Sec. 319.37-8(a).... List of USDA plant
inspection stations would
be moved to the Plants for
Planting Manual.
----------------------------------------------------------------------------------------------------------------
We now describe each section in our proposed revision of the plants
for planting regulations, including the sections of the current
regulations from which they were derived.
Notice of Quarantine
Proposed Sec. 319.37-1 would provide official notice of the
quarantine we have established on the importation of plants for
planting. It would fulfill a function similar to that of current Sec.
319.37(a), but with different wording, since the current language
refers to prohibited and restricted articles. Proposed paragraph (a) of
Sec. 319.37-1 would indicate that, under section 412(a) of the Plant
Protection Act, the Secretary of Agriculture may prohibit or restrict
the importation and entry of any plant or plant product if the
Secretary determines that the prohibition or restriction is necessary
to prevent the introduction into the United States or the dissemination
within the United States of a plant pest or noxious weed.
Paragraph (b) would state that the Secretary has determined that it
is necessary to designate the importation of specific taxa of plants
for planting as NAPPRA, as provided in proposed Sec. 319.37-4. It
would further state that the Secretary has determined that it is
necessary to restrict the importation into the United States of all
other plants for planting and to impose additional restrictions on the
importation of specific types of plants for planting, in accordance
with the plants for planting
[[Page 24643]]
regulations and as described in the Plants for Planting Manual.
We would add a new paragraph (c) to clarify that the importation of
plants that are intended for processing is not regulated under the
plants for planting regulations. As discussed earlier, some plants can
be used either for planting or for processing. Importation of plants
for processing typically poses a much lower risk than importation for
planting, as most processing greatly reduces or eliminates the
potential for pest introduction. Plants imported for processing may
thus be subject to less stringent importation requirements than plants
for planting. It has been our practice to determine whether plants are
being imported for processing based on documentation accompanying the
plants. For example, the Harmonized Tariff Schedule has different codes
for plants imported as live plants and plants imported for processing.
Therefore, proposed paragraph (c) would indicate that the importation
of plants that are imported for processing, as determined by an
inspector based on documentation accompanying the articles, is not
subject to the plants for planting regulations.
Paragraph (d) would indicate that the importation of taxa of plants
for planting that are listed in 7 CFR part 360, which imposes
restrictions on the importation of plant taxa designated as noxious
weeds, and part 361, which imposes restrictions on the importation of
certain types of seed, is subject to the restrictions in those parts.
This text would help inform readers about the other parts in 7 CFR
chapter III that contain regulations that apply to the importation of
plants for planting. The taxa listed in 7 CFR parts 360 and 361, and
the restrictions that apply to their importation, are also listed in
the Plants for Planting Manual, making it a comprehensive reference.
Paragraphs (e) and (f) would incorporate into the main body of the
regulations the information contained in current footnotes 1 and 2 to
the subpart heading. Paragraph (e) would indicate that PPQ 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 plants for
planting subject to the plants for planting regulations (see 50 CFR
parts 17 and 23).
Paragraph (f) would state that one or more common names of plants
for planting are given in parentheses after most scientific names (when
common names are known) for the purpose of helping to identify the
plants for planting represented by such scientific names; however,
unless otherwise specified, a reference to a scientific name includes
all plants for planting within the taxon represented by the scientific
name regardless of whether the common name or names are as
comprehensive in scope as the scientific name. (The current footnote 2
refers to ``category'' rather than ``taxon''; the latter term is more
precise and is defined in the regulations.)
We are also proposing to add in paragraph (f) an advisory that when
restrictions apply to the importation of a taxon of plants for planting
for which there are taxonomic synonyms, those restrictions apply to the
importation of all the synonyms of that taxon as well. Synonyms are
commonly listed in the Germplasm Research Information Network, which is
maintained by the USDA's Agricultural Research Service. Treating
synonyms the same is our current practice for plants for planting, as
calling a taxon by a synonym rather than the name listed in the
regulations does not change the risk it poses, but the regulations do
not currently reflect this practice.
Definitions
Proposed Sec. 319.37-2 would contain definitions of terms used in
the plants for planting regulations. We would retain as they currently
appear in the regulations the definitions of bulb, earth, inspector,
noxious weed, official control, person, plant, plant pest, Plant
Protection and Quarantine Programs, planting, port of first arrival,
preclearance, production site, quarantine pest, regulated plant,
Secretary, soil, State, State Plant Regulatory Official, taxon, and
United States.
We are proposing to remove these definitions from the regulations:
Clean well water, disease, Europe, indexing, Oceania, potable water,
and Solanum spp. true seed. These terms relate to plant type-specific
restrictions and, with the removal of those restrictions, would no
longer be used in the regulations. However, we would add these
definitions to the Plants for Planting Manual.
We are also proposing to remove the definitions of prohibited
article and restricted article for reasons discussed earlier.
We are proposing to remove the definition of Deputy Administrator
and all references to the Deputy Administrator in the regulations. In
their places, we would add references to the Administrator. In Sec.
319.37-2, we would add a definition of Administrator to read: ``The
Administrator of the Animal and Plant Health Inspection Service, United
States Department of Agriculture, or any other employee of the United
States Department of Agriculture authorized to act in his or her
stead.'' This would make the plants for planting regulations consistent
with other subparts in part 319, which refer to the Administrator as
the decisionmaking authority within APHIS.
Besides the new definition of Plants for Planting Manual discussed
earlier, we are proposing to add definitions of consignment, lot,
mother stock, national plant protection organization (NPPO), place of
production, and type of plants for planting. The proposed definition of
consignment is based on the definition of that term in the
International Plant Protection Convention's (IPPC) Glossary of
Phytosanitary Terms.\5\ The proposed definition reads: ``A quantity of
plants for planting being moved from one country to another and
covered, when required, by a single phytosanitary certificate (a
consignment may be composed of one or more lots or taxa).'' We are
proposing to define ``lot'' as a number of units of a single commodity,
identifiable by its homogeneity of composition and origin, forming all
or part of a consignment. We are also proposing to replace the term
``shipment'' (as a noun) with ``consignment'' where the former term
appears in the regulations.
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\5\ International Standard for Phytosanitary Measures (ISPM) No.
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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The definition we are proposing to add for national plant
protection organization (NPPO) would read: ``The official service
established by a government to discharge the functions specified by the
International Plant Protection Convention.'' This definition is also
based on a definition in the IPPC Glossary. We would replace references
in the regulations to ``plant protection service'' and similar terms
with references to ``NPPO.''
These changes would make our regulations consistent with
international standards.
In this document, we have referred broadly to the categories of
plants regulated in the plants for planting regulations as ``types of
plants for planting.'' Many of the restrictions in the regulations are
specific to taxa of plants, but others address other categories of
plants on the basis of shared risk factors. For example, the
regulations in Sec. 319.37-4(c) allow for the importation of
greenhouse-grown plants from Canada without a
[[Page 24644]]
phytosanitary certificate, provided that certain conditions are met.
This program applies to any taxon of plants that is grown in a
certified greenhouse in Canada; both of these factors (growing
conditions and origin) contribute to the plants' eligibility for the
program. Similarly, many of the size and age restrictions in Sec.
319.37-2(b) apply to broad categories of plants, such as naturally
dwarfed trees and shrubs.
To facilitate applying restrictions to specific types of plants for
planting in accordance with the proposed regulations and in the Plants
for Planting Manual, we are proposing to add a definition of type of
plants for planting to the regulations. The definition would read: ``A
grouping of plants for planting based on shared characteristics such as
biological traits, morphology, botanical nomenclature, or risk
factors.'' Thus, ``type of plants for planting'' includes shared
botanical nomenclature but also includes any other shared risk factors
that can serve as a basis for imposing restrictions on the importation
of plants for planting. We welcome comment on this approach.
The definitions of the other new terms will be discussed where they
appear in the proposed regulations.
Besides amending the definition of plants for planting as discussed
earlier in this document, we are proposing to amend a few other
existing definitions to reflect changes in this proposal. The
definition of from states that an article is considered to be ``from''
any country or locality in which it was grown, except that it can be
considered to be from Canada if certain conditions are fulfilled. One
of the conditions is that the article is not prohibited nor subject to
restrictions under certain paragraphs of Sec. 319.37-5, subject to a
required treatment under Sec. 319.37-6, or subject to postentry
quarantine under Sec. 319.37-7. We would replace the reference to
prohibited articles with a reference to plants for planting whose
importation is NAPPRA in accordance with proposed Sec. 319.37-4. In
addition, as all restrictions on specific types of plants for planting
would now be found in the Plants for Planting Manual, we would update
the definition to require that the plants for planting may not have
been subject to certain import restrictions under Sec. 319.37-20.
These restrictions would be the same as those listed in the current
definition of from. We would list those restrictions in the Plants for
Planting Manual. We would also replace references to ``articles'' in
this definition with references to ``plants for planting.''
We would shorten the defined term phytosanitary certificate of
inspection to phytosanitary certificate, as completing such
certificates can require much more than a simple inspection. The
definition indicates that a phytosanitary certificate is a document
related to a restricted article; we would amend the definition to
indicate that it is a document related to a consignment of plants for
planting.
Finally, we would amend the defined term Spp. (species) by
switching the order of the words, i.e., making the defined term Species
(spp.). This would put the word ``species'' before its abbreviation,
the more common way of presenting such information.
General Restrictions on the Importation of Plants for Planting
To help readers navigate the new plants for planting regulations,
we would provide an overall guide to their structure in proposed Sec.
319.37-3. This section would indicate that the importation of certain
taxa of plants for planting is NAPPRA in accordance with proposed Sec.
319.37-4. General restrictions that apply to the importation of all
plants for planting other than those whose importation is NAPPRA in
accordance with proposed Sec. 319.37-4 would be found in proposed
Sec. Sec. 319.37-5 through 319.37-11.
Just as restrictions on the importation of specific taxa of plants
for planting are found throughout the current regulations, so are
restrictions on the importation of all or most types of plants for
planting found throughout the current regulations. The goal of this
restructuring is to group all the general requirements together in the
regulations, to make it easier for readers to determine what
requirements apply to all or most imported plants for planting.
Proposed Sec. 319.37-3 would also state that, in accordance with
proposed Sec. 319.37-20, the Administrator may impose restrictions on
the importation of specific types of plants for planting. These
restrictions would be listed in the Plants for Planting Manual. (The
break between proposed Sec. Sec. 319.37-11 and 319.37-20 is intended
to emphasize the fact that the former would be the end of the general
restrictions in the regulations, after which provisions for imposing
restrictions on the importation of specific types of plants for
planting would be found.)
In addition, proposed Sec. 319.37-3 would note that additional
information on certain restrictions on the importation of specific
types of plants for planting could be found in proposed Sec. Sec.
319.37-21 through 319.37-23. Although we are proposing to remove
specific restrictions from the regulations, we are also proposing to
provide general requirements for certain specific restrictions.
Specifically, proposed Sec. 319.37-21 would discuss integrated pest
risk management measures; Sec. 319.37-22 would discuss trust funds
that may be required if APHIS is involved in mitigations in a foreign
country; and Sec. 319.37-23 would include the remaining postentry
quarantine requirements. We will discuss these proposed sections in
order later in this document.
Taxa of Plants for Planting Whose Importation Is Not Authorized Pending
Pest Risk Analysis
Proposed Sec. 319.37-4 would contain the NAPPRA regulations
currently found in Sec. 319.37-2a, with the changes discussed earlier
in this document.
Permits
Proposed Sec. 319.37-5 would include most of the current permit
requirements in Sec. 319.37-3, with changes as discussed below.
Paragraph (a) of current Sec. 319.37-3 lists articles for which a
written permit is required for importation. As noted earlier, paragraph
(a)(5) of Sec. 319.37-3 requires lots of 13 or more articles (other
than seeds, bulbs, or sterile cultures of orchid plants) from any
country or locality except Canada to be imported into the United States
with a written permit. This means that most consignments of plants for
planting are imported with a permit; the exceptions for which a permit
is not required are lots of 12 or fewer articles other than seeds,
bulbs, or sterile cultures of orchid plants, and all lots of seeds,
bulbs, or sterile cultures of orchid plants, that do not include of
types of plants for planting addressed by the other subparagraphs in
paragraph (a).
We are proposing to revise current Sec. 319.37-3(a) to indicate
that a permit is generally required for all plants for planting, with
exceptions listed in the Plants for Planting Manual. Exceptions would
be added, changed, or removed in accordance with proposed Sec. 319.37-
20. This would allow us to update the list of exceptions through a
notice when necessary and take public comment on any changes we make.
In addition, we would make some changes to the list of types of
plants for planting that require a permit as part of moving this
information into the plants for planting manual. The current list
indicates that permits are required for articles subject to treatment
requirements; articles subject to postentry quarantine requirements;
and articles subject to other specific conditions elsewhere in the
regulations (specifically, Solanum tuberosum true seed imported from
Chile, Fraxinus spp.
[[Page 24645]]
imported from Canada, and small lots of seed imported without a
phytosanitary certificate). As we are proposing to remove all these
specific requirements from the regulations, we would indicate in the
Plants for Planting Manual that a permit is required for any
consignment of 12 or fewer plants for planting whose importation is
subject to specific restrictions in accordance with proposed Sec.
319.37-20.
This change would mean that a permit would be required for any type
of plants for planting whose importation is subject to specific
restrictions, not just those currently named in the regulations. We
believe that a permit is necessary as an additional safeguard for the
importation of these plants; that importation has already been
determined to pose a risk, which is why we have imposed specific
restrictions on it, and the permit provides an additional means of
communicating those specific restrictions to the importer. We expect
that this change will have a very small impact on the importation of
plants for planting, since most lots of plants for planting to which
specific restrictions apply are composed of 13 or more articles and are
thus required to be accompanied by a permit under paragraph (a)(5) of
Sec. 319.37-3. However, we invite public comment on the impacts of
this proposed change.
We would also add a statement in proposed paragraph (a)(2) that
plants for planting whose importation is subject to postentry
quarantine must also be imported under an importer postentry quarantine
growing agreement. This requirement is found in Sec. 319.37-7(a)(2) of
the current regulations, and we would retain it in this proposal; we
would add the reference here to help readers be aware of all the
documentation requirements that apply to plants imported into postentry
quarantine.
The requirements currently found in paragraphs (a)(3), (a)(4),
(a)(6), (a)(7), and (a)(17) through (a)(19) of Sec. 319.37-3 would be
moved to the Plants for Planting Manual, with minor changes to reflect
the change from ``restricted articles'' to ``plants for planting''
discussed earlier.
Paragraphs (a)(8) through (a)(16) of Sec. 319.37-3 contain
requirements for permits for articles that are destined to specific
States. We are not proposing to include these paragraphs in the Plants
for Planting Manual because we no longer use permits to notify States
of these potential importations; that is accomplished through an
electronic notification system.
Paragraph (b) of Sec. 319.37-3 contains instructions on applying
for a permit. We would include these instructions in paragraph (b) of
Sec. 319.37-5, but would update the address to which to write to apply
for a permit. We would also include a Web address at which one can
apply for a permit. With these changes, paragraph (b) of proposed Sec.
319.37-5 would require an application for a written permit to be
submitted to PPQ (Animal and Plant Health Inspection Service, Plant
Protection and Quarantine, Permits, Permit Unit, 4700 River Road Unit
133, Riverdale, MD 20737-1236) at least 30 days prior to arrival of the
plants for planting at the port of entry. It would indicate that
application forms are available without charge from that address or on
the Web at http://www.aphis.usda.gov/permits/ppq_epermits.shtml. The
completed application would have to include the following information:
Name, address, and telephone number of the importer;
The taxon or taxa and the approximate quantity of plants
for planting intended to be imported. Current paragraph (b)(2) refers
to the ``kinds (botanical designations) of articles intended to be
imported.'' We would instead refer to ``taxon or taxa'' to be
consistent with the rest of the regulations;
Country(ies) or locality(ies) where grown;
Intended United States port of entry;
Means of transportation, e.g., mail, airmail, express, air
express, freight, airfreight, or baggage; and
Expected date of arrival.
Paragraphs (c) through (f) of Sec. 319.37-3 contain provisions for
issuing permits, withdrawing permits, and oral permits. We would retain
those paragraphs without substantive changes in proposed Sec. 319.37-
5, although we would change references to ``articles'' to ``plants for
planting'' and references to the Deputy Administrator to refer to the
Administrator. Paragraph (e) currently refers to articles not
designated as required to be imported with a permit in Sec. 319.37-
3(a); we would amend this paragraph to refer to plants for planting not
required to be imported with a permit in accordance with proposed Sec.
319.37-5(a), to reflect the other changes we have proposed.
Phytosanitary Certificates
Proposed Sec. 319.37-6 would contain the general requirements for
phytosanitary certificates that are currently found in Sec. 319.37-4.
Section 319.37-4 is headed ``Phytosanitary certificates of
inspection,'' and the introductory text of paragraph (a) in Sec.
319.37-4 states that any restricted article offered for importation
into the United States must be accompanied by a phytosanitary
certificate of inspection. We would amend the section heading and this
requirement by removing the words ``of inspection,'' for reasons
discussed earlier. We would also amend paragraph (a) to refer to plants
for planting offered for importation, rather than restricted articles.
The introductory text of paragraph (a) also includes requirements
for identification of the taxon of plants for planting that it
accompanies, which we would retain. The text currently requires the
phytosanitary certificate that accompanies a restricted article must
identify the genus and species or cultivar of that article when the
regulations place restrictions on individual species or cultivars
within a genus. We would amend this requirement to indicate that such
identification is required when the importation of individual species
or cultivars within a genus is restricted in accordance with proposed
Sec. 319.37-20. The remaining identification requirements, for
designation of intergeneric and interspecific hybrids, would remain
unchanged.
Within Sec. 319.37-4(a), subparagraphs (a)(1) through (a)(4) list
exceptions to the requirement for a phytosanitary certificate.
Paragraphs (c), (d), and (e) of Sec. 319.37-4 set out specific
requirements under which certain types of plants for planting may be
imported without a phytosanitary certificate; these paragraphs cover
greenhouse-grown plants from Canada, small lots of seed, and certain
seeds from Canada, respectively.
With the exception of the requirements for small lots of seed, we
are proposing to remove these specific requirements from the
regulations and instead include them in the Plants for Planting Manual.
We would retain the requirements for small lots of seed because they do
not apply to a specific type of plants for planting; rather, they limit
importations of seed to quantities that make an extremely thorough
inspection of the seed practical. These requirements would be included
in paragraph (b) of proposed Sec. 319.37-6, with minor changes to
reflect new section designations and other changes proposed in this
document.
To cover the other current exceptions to the requirement for a
phytosanitary certificate, paragraph (c)(1) of proposed Sec. 319.37-6
would state that the Administrator may authorize the importation of
types of plants for planting without a phytosanitary certificate if the
plants for planting are
[[Page 24646]]
accompanied by equivalent documentation agreed upon by the
Administrator and the NPPO of the exporting country as sufficient to
establish the origin, identity, and quarantine pest status of the
plants. The documentation would have to be provided by the NPPO or
refer to documentation of the origin, identity, and quarantine pest
status of the plants for planting provided by the NPPO. The
documentation would have to be agreed upon before the plants for
planting are exported from the exporting country to the United States.
These general conditions are fulfilled by each of the sets of
provisions in the current regulations under which types of plants for
planting may be imported without a phytosanitary certificate. In fact,
these general conditions are necessary to provide the same information
as would be provided by a phytosanitary certificate.
Paragraph (c)(2) of proposed Sec. 319.37-6 would indicate that the
Administrator may impose additional restrictions on the importation of
plants for planting that are not accompanied by a phytosanitary
certificate to ensure that the plants are appropriately identified and
free of quarantine pests. Paragraph (c)(3) would indicate that the
Plants for Planting Manual lists plants for planting that are not
required to be accompanied by a phytosanitary certificate; the
countries from which their importation without a phytosanitary
certificate is authorized; the approved documentation of their origin,
identity, and quarantine pest status; and any additional conditions on
their importation.
Paragraph (c)(4) of proposed Sec. 319.37-6 would indicate that
types of plants for planting may be added to or removed from the list
of plants for planting that are not required to be accompanied by a
phytosanitary certificate in accordance with proposed Sec. 319.37-20.
The requirements for importing specific types of plants for planting
without a phytosanitary certificate could also be changed in accordance
with Sec. 319.37-20. The notice published for comment would describe
the documentation agreed upon by the Administrator and the NPPO of the
exporting country and any additional restrictions to be imposed on the
importation of the type of plants for planting. This provision would
allow for the importation of plants for planting without a
phytosanitary certificate provided the conditions of proposed paragraph
(c)(1) are met, with any additional conditions the Administrator
determines to be necessary under proposed paragraph (c)(2). Requiring
plants for planting to be authorized for importation without a
phytosanitary certificate in accordance with proposed Sec. 319.37-20
would allow for public input on the change.
Marking and Identity
Proposed Sec. 319.37-7 would contain requirements for marking and
identity of imported plants for planting that are substantially
identical to the requirements currently found in Sec. 319.37-10. As in
other sections, we would change all references to ``restricted
articles'' to ``plants for planting.'' We would change a reference in
paragraph (c) of Sec. 319.37-10 to a ``shipment'' of plants for
planting to a ``consignment,'' to be consistent with changes discussed
earlier.
Paragraphs (a) and (b) of Sec. 319.37-10 address importation by
any means other than mail and by mail, respectively. Each requires that
imported plants be accompanied by, among other information, the number
of the written permit authorizing the importation, if one was issued.
We are proposing to require instead that the number of the written
permit authorizing the importation be included if a written permit was
required under proposed Sec. 319.37-5. This change would clarify that
all articles required to be accompanied by a permit must be marked with
that permit number.
Ports of Entry: Approved Ports, Notification of Arrival, Inspection,
and Refusal of Entry
Information about approved ports of entry, notification of arrival
at the port of entry, inspection, and refusal of entry is currently
spread among multiple sections in the regulations. We are proposing to
consolidate this information into a new Sec. 319.37-8 to make the
regulations easier to use.
Paragraph (a) of proposed Sec. 319.37-8 would describe approved
ports of entry for imported plants for planting. This information would
be taken from the introductory text of Sec. 319.37-14. The proposed
text would state that any plants for planting required to be imported
under a written permit pursuant to proposed Sec. 319.37-5(a), if not
precleared, may be imported or offered for importation only at a USDA
plant inspection station.
Current Sec. 319.37-14 also contains a list of USDA plant
inspection stations. We are proposing to remove this list from the
regulations and add it to the Plants for Planting Manual. Our decision
to establish a USDA plant inspection station at a port of entry is
based on the demand for inspection and the available facilities; public
input on adding or removing USDA plant inspection stations would not be
constructive, and in fact past additions to the list of USDA plant
inspection stations have not received any public comment. Accordingly,
as part of moving the introductory text of Sec. 319.37-14 into
proposed Sec. 319.37-8(a), we would amend that text to indicate the
USDA plant inspection stations are listed in the Plants for Planting
Manual. The other provisions would remain unchanged, except to change
from ``restricted articles'' to ``plants for planting.''
Plants for planting that are not required to be imported under a
written permit pursuant to Sec. 319.37-5(a) would be allowed to be
imported or offered for importation at any Customs designated port of
entry. Exceptions, if any, would be listed in Sec. 330.104. Plants for
planting that are required to be imported under a written permit that
are also precleared in the country of export would not be required to
enter at an inspection station and may enter through any Customs port
of entry. Exceptions, if any, would be listed in Sec. 330.104. These
provisions are unchanged from current Sec. 319.37-14.
Paragraph (b) of proposed Sec. 319.37-8 would include the
information in current Sec. 319.37-11 regarding notice of arrival. It
would state that, promptly upon arrival of any plants for planting at a
port of entry, the importer shall notify PPQ of the arrival by such
means as a manifest, Customs entry document, commercial invoice,
waybill, a broker's document, or a notice form provided for that
purpose.
Paragraph (c) of proposed Sec. 319.37-8 would include the
provisions currently in Sec. 319.37-4(b) regarding inspection and
treatment. It would state that any plants for planting may be sampled
and inspected by an inspector at the port of first arrival and/or under
preclearance inspection arrangements in the country in which the plants
for planting were grown, and must undergo treatment in accordance with
7 CFR part 305 if treatment is ordered by the inspector. (The
regulations currently state that plants for planting must undergo any
treatment contained in the phytosanitary treatment regulations in 7 CFR
part 305 that is ordered by the inspector, but part 305 no longer
contains treatments; instead, it contains general requirements for
performing treatments, while specific treatments are found in the PPQ
Treatment Manual.) Any plants for planting found upon inspection to
contain or be contaminated with quarantine pests that cannot be
eliminated by treatment would be denied entry at the first United
States port of arrival and would
[[Page 24647]]
have to be destroyed or shipped to a point outside the United States.
Paragraphs (d) and (e) of proposed Sec. 319.37-8 would include the
provisions currently in Sec. 319.37(b) and (c). Under paragraph (d),
the importer of any plants for planting denied entry for noncompliance
with the regulations would have to, at the importer's expense and
within the time specified in an emergency action notification (PPQ Form
523), destroy, ship to a point outside the United States, treat in
accordance with 7 CFR part 305, or apply other safeguards to the plants
for planting, as prescribed by an inspector, to prevent the
introduction into the United States of quarantine pests. In choosing
which action to order and in setting the time limit for the action, the
inspector would consider the degree of pest risk presented by the plant
pest associated with the plants for planting, whether the plants for
planting are a host of the pest, the types of other host materials for
the pest in or near the port, the climate and season at the port in
relation to the pest's survival range, and the availability of
treatment facilities for the plants for planting.
As described, the regulations governing the handling of articles
that are inspected and found to require treatment are slightly
different from the regulations governing the handling of articles that
are denied entry for noncompliance with the regulations. We are
proposing to retain the two sets of provisions, but we are considering
harmonizing them in the future.
Under paragraph (e) of proposed Sec. 319.37-8, which is drawn from
current Sec. 319.37(c), no person would be allowed to remove any
plants for planting from the port of first arrival unless and until
notice is given to the collector of customs by the inspector that the
plants for planting has satisfied all requirements of the regulations.
Treatment of Plants for Planting; Costs and Charges for Inspection and
Treatment; Treatments Applied Outside the United States
Proposed Sec. 319.37-9 would include various provisions of the
current regulations that deal with treatments. These provisions are
mostly taken from current Sec. 319.37-13.
Paragraph (a) of proposed Sec. 319.37-9 is drawn from current
paragraph (a) of Sec. 319.37-13. It would state that the services of a
Plant Protection and Quarantine inspector during regularly assigned
hours of duty and at the usual places of duty shall be furnished
without cost to the importer. No charge would be made to the importer
for Government-owned or -controlled special inspection facilities and
equipment used in treatment, but the inspector may require the importer
to furnish any special labor, chemicals, packing materials, or other
supplies required in handling an importation. PPQ would not be
responsible for any costs or charges, other than those indicated in
proposed Sec. 319.37-9.
Most of paragraph (b) of proposed Sec. 319.37-9 is drawn from
current paragraph (b) of Sec. 319.37-9, but the first sentence of
proposed paragraph (b) incorporates a requirement currently found in
Sec. 319.37-6(b). That paragraph requires seeds and bulbs treated
within the United States to be treated at the time of importation into
the United States. Among the various types of plants for planting, only
seeds and bulbs are routinely subjected to phytosanitary treatment, as
treatments typically cause significant mortality in other types of
plants for planting. However, our policy has been to require treatment
at the time of importation for any plants for planting that require
treatment, not just seeds and bulbs, since the movement of potentially
infested plants for planting within the United States could be a
pathway for the introduction of quarantine pests. To promote clarity,
we would amend proposed paragraph (b) to indicate that any treatment
performed in the United States on plants for planting must be performed
at the time of importation into the United States, not just treatments
on seeds and bulbs.
Paragraph (b) would also indicate that treatment would be performed
by an inspector or under an inspector's supervision at a government-
operated special inspection facility, except that an importer may have
such treatment performed at a nongovernmental facility if the treatment
is performed at nongovernment expense under the supervision of an
inspector and in accordance with 7 CFR part 305 and in accordance with
any treatment required by an inspector as an emergency measure in order
to prevent the dissemination of any quarantine pests. However,
treatment could be performed at a nongovernmental facility only in
cases of unavailability of government facilities and only if, in the
judgment of an inspector, the plants for planting can be transported to
such nongovernmental facility without the risk of introduction into the
United States of quarantine pests.
Paragraph (c) of proposed Sec. 319.37-9 would be drawn from
current paragraph (c) of Sec. 319.37-13. It would require any
treatment performed outside the United States to be monitored and
certified by an APHIS inspector or an official from the NPPO of the
exporting country. If monitored and certified by an official of the
NPPO of the exporting country, then a phytosanitary certificate would
have to be issued with the following declaration: ``The consignment of
(fill in taxon) has been treated in accordance with 7 CFR part 305.''
(We are proposing to replace the term ``botanical name'' in the current
text with the term ``taxon.'') During the entire interval between
treatment and export, the consignment would have to be stored and
handled in a manner that prevents any infestation by quarantine pests.
Growing Media
Proposed Sec. 319.37-10 would set out requirements with respect to
the importation of plants for planting in growing media. It would be
based on current Sec. 319.37-8, but we would revise the current
regulations to reflect the removal of restrictions on the importation
of specific types of plants for planting from the regulations and to
add a notice-based process for updating the list of approved growing
media.
Paragraph (a) of proposed Sec. 319.37-10 would require plants for
planting at the time of importation or offer for importation into the
United States to be free of sand, soil, earth, and other growing media,
except as provided in the remainder of the section.
Paragraph (b) of Sec. 319.37-8 currently states that a restricted
article from Canada may be imported in any growing medium, except that
a restricted article from Newfoundland or from that portion of the
Municipality of Central Saanich in the Province of British Columbia
east of the West Saanich Road may only be imported in an approved
growing medium if the phytosanitary certificate accompanying it
contains an additional declaration that that the plants were grown in a
manner to prevent infestation by potato cyst nematodes. Articles
imported from Canada are generally exempt from the prohibition on
importation with growing media because the pest risks in the United
States and Canada are similar.
We are proposing to revise this paragraph to remove the specific
restrictions on plants for planting grown in certain areas in Canada.
Instead, proposed paragraph (b) would state that plants for planting
from Canada may be imported in any growing medium, except as restricted
in the Plants for Planting Manual. Restrictions on growing media for
specific types of plants for planting imported from Canada would be
added, changed, or removed in accordance with proposed Sec. 319.37-20.
Using the notice-based process to update these restrictions
[[Page 24648]]
would provide flexibility and allow us to respond to changing pest
conditions more quickly.
Paragraph (c) of Sec. 319.37-8 allows a restricted article growing
solely in agar or in other agar-like tissue culture medium to be
imported established in such growing media. Paragraph (d) allows
epiphytic plants (including orchid plants) established solely on tree
fern slabs, coconut husks, coconut fiber, new clay pots, or new wooden
baskets to be imported on such growing media. New wooden baskets must
meet all applicable requirements in Sec. Sec. 319.40-1 through 319.40-
11, which contain requirements for the importation of wood.
We are proposing to remove these specific requirements and instead
generally provide, in proposed paragraph (c), that certain types of
plants for planting growing solely in certain growing media listed in
the Plants for Planting Manual may be imported established in such
growing media. We would state that the Administrator has determined
that the importation of the specified types of plants for planting in
these growing media does not pose a risk of introducing quarantine
pests into the United States, thus communicating the condition for
allowing types of plants for planting to be imported in growing media
without further restrictions.
Proposed paragraph (c) would also provide that, if we determine
that a new growing medium may be added to the list of growing media in
which imported plants for planting may be established, or that a
growing medium currently listed for such purposes is no longer suitable
for establishment of imported plants for planting, we will publish in
the Federal Register a notice that announces our determination and
requests comment on the change. In our notice, we will provide for a
public comment period, typically 60 days. After the close of the
comment period, we will publish another notice informing the public
regarding our decision on the change to the list of growing media in
which imported types of plants for planting may be established.
Establishing this process would allow us to quickly approve growing
media or revoke their approval, depending on changing scientific
information.
Paragraph (e) of Sec. 319.37-8 lists several taxa of plants for
planting that may be imported in certain approved growing media subject
to conditions designed to prevent their infestation with quarantine
pests. We are proposing to remove these specific requirements from the
regulations. In their place, proposed paragraph (d) would state that
certain types of plants for planting, as listed in the Plants for
Planting Manual, may be imported when they are established in a growing
medium approved by the Administrator and they are produced in
accordance with additional requirements specified in the Plants for
Planting Manual. (In addition to changing the provisions currently in
paragraph (e), this would also allow for changes to the lists of plants
for planting allowed to be imported in approved growing media that are
currently found in paragraphs (c) and (d) of Sec. 319.37-8.) Changes
to the list of plants for planting that may be imported in growing
media, and to the requirements for the importation of those plants for
planting, would be made in accordance with Sec. 319.37-20.
Packing and Approved Packing Material
Proposed Sec. 319.37-11 would set out requirements for packing
imported plants for planting and for their importation in packing
material. Packing material is distinguished from growing media in that
the plant is not rooted in packing material and the plant's roots are
easily removed from packing material for inspection. This proposed
section incorporates requirements from current Sec. Sec. 319.37-9 and
319.37-12.
Paragraph (a) of proposed Sec. 319.37-11 would indicate that
plants for planting for importation into the United States must not be
packed in the same container as plants for planting whose importation
into the United States is NAPPRA in accordance with proposed Sec.
319.37-4. Currently, Sec. 319.37-12 prohibits restricted articles from
being imported into the United States in the same container as
prohibited articles; we propose to update this section to use the
terminology established elsewhere in this proposal.
Paragraph (b) of proposed Sec. 319.37-11 would be based on current
Sec. 319.37-9, which contains a list of approved packing materials.
However, we would remove the list of approved packing materials from
the regulations. Instead, proposed paragraph (b) would provide that any
plants for planting at the time of importation or offer for importation
into the United States shall not be packed in a packing material unless
the plants were packed in the packing material immediately prior to
shipment; such packing material is free from sand, soil, or earth
(except as designated in the Plants for Planting Manual); has not been
used previously as packing material or otherwise; and is approved by
the Administrator as not posing a risk of introducing quarantine pests.
Approved packing materials (and the sand that can be found on approved
packing material) would be listed in the Plants for Planting Manual.
There is a great diversity of packing materials that do not support the
development of quarantine pests; allowing the Administrator to approve
such packing material, rather than going through the rulemaking process
to list new packing material in the regulations, will make it easier
for importers to use newly available, risk-free packing materials.
Paragraph (c) of proposed Sec. 319.37-11 would set out our process
for changing the list of approved packing materials. Similar to the
process for changing the list of approved growing media, proposed
paragraph (c) would provide that, if we determine that a new packing
material may be added to the list of approved packing materials, or
that a packing material currently listed should no longer be approved,
we will publish in the Federal Register a notice that announces our
determination and requests comment on the change. In our notice, we
will provide for a public comment period, typically of 60 days. After
the close of the comment period, we will publish another notice
informing the public regarding our decision on the change to the list
of approved packing materials in which imported types of plants for
planting may be established. Establishing this process would allow us
to quickly approve packing materials or revoke their approval,
depending on changing scientific information.
Integrated Pest Risk Management Measures
We have already discussed proposed Sec. 319.37-20, which would set
out the process for adding, changing, or removing restrictions on the
importation of specific types of plants for planting. We are proposing
to include in our revised regulations three sections that would set out
procedures for certain plant type-specific restrictions.
Proposed Sec. 319.37-21 would set out general requirements for the
development of integrated pest risk management measures, when we
determine that such measures are necessary to mitigate the risk
associated with the importation of a specific type of plants for
planting. We currently have several programs in the regulations that
use integrated pest risk management measures in order to ensure that
specific types of plants for planting are imported free of a quarantine
pest or pests. The program in Sec. 319.37-5(r) for the importation of
Pelargonium spp. and Solanum spp. from areas where R. solanacearum race
3 biovar 2 is present
[[Page 24649]]
is one example. It incorporates requirements for ongoing testing for
that pathogen, construction of production sites to prevent the pathogen
from entering from outside sources such as water or workers' clothing,
disinfection of equipment used in the production site, ensuring that
growing media is free of the pathogen, training of production site
personnel, remedial measures in case the pathogen is detected, and
phytosanitary certification.
An example of a program focused on an insect pest is the program in
Sec. 319.37-5(v) for the importation of plants for planting from
Israel, which is designed to prevent the introduction of Spodoptera
littoralis and other quarantine pests. This program includes
requirements for registration of production sites, construction of
production sites to prevent the introduction of S. littoralis, regular
inspections for the pest, remedial measures in case the pest is
detected, and phytosanitary certification.
Although we are proposing to move the requirements for these
specific programs from the regulations to the Plants for Planting
Manual, we believe it will benefit stakeholders and other interested
parties to see what general provisions we would use to develop such
programs in the future. The provisions we are proposing to include in
Sec. 319 37-21 are based on Regional Standard for Phytosanitary
Measures (RSPM) No. 24 \6\ of the North American Plant Protection
Organization, of which APHIS is a member, and are consistent with the
IPPC's ISPM No. 36; both of these standards address plants for
planting.
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\6\ Available at http://www.nappo.org/en/data/files/download/PDF/RSPM24-16-10-05-e.pdf.
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In the past, we have referred to these programs as ``systems
approaches.'' We are proposing to use the term ``integrated pest risk
management measures'' in the plants for planting regulations to be
consistent with RSPM No. 24 and industry terminology and to emphasize
the fact that such programs involve multiple measures, each of which is
necessary for a comprehensive approach to managing pest risk.
The introductory text of proposed Sec. 319.37-21 would indicate
that, if a type of plants for planting is a host of a quarantine pest
or pests, APHIS may require the type to be produced in accordance with
integrated pest risk management measures as a condition of importation.
Proposed Sec. 319.37-21 would set out a general framework for
integrated pest risk management measures.
When appropriate, we would require a type of plants for planting to
be imported subject to integrated pest risk management measures that
mitigate the quarantine pest risks associated with that type of plants
for planting through the process described in Sec. 319.37-20. In the
documentation accompanying the notice we would publish under Sec.
319.37-20, we would specify the quarantine pests identified and the
specific measures we would use to manage them. Those measures would be
consistent with the general measures described in proposed Sec.
319.37-21, but would be targeted to the identified quarantine pests.
The NAPPO standard and our proposed regulations describe the
responsibilities of all parties involved in integrated pest risk
management measures: The place of production, the NPPO of the exporting
country, plant brokers, and the NPPO of the importing country (i.e.,
APHIS). We are not proposing to include most of the information in RSPM
No. 24 with respect to our responsibilities, as it is not necessary to
specify the actions we will take in the regulations. However, the
proposed regulations provide us with the authority to take any action
we may deem to be necessary. As a practical matter, we concur with RSPM
No. 24 and would take action in accordance with its principles when
developing and implementing integrated pest risk management measures.
Paragraph (a) of proposed Sec. 319.37-21 would discuss the
responsibilities of the place of production. RSPM No. 24 uses ``place
of production'' as that term is defined in the IPPC Glossary.
Accordingly, we would add to the regulations a definition of place of
production, which would be consistent with the definition of that term
in the IPPC Glossary. The definition would read: ``Any premises or
collection of fields operated as a single production or farming unit.
This may include a production site that is separately managed for
phytosanitary purposes.''
The introductory text of paragraph (a) would indicate that, for
integrated pest risk management measures, the place of production would
be responsible for identifying, developing, and implementing procedures
that meet the requirements of both the NPPO of the exporting country
and APHIS. Participants in the export program would have to be approved
by the NPPO or its designee and APHIS. Approval would be conferred by
the NPPO or its designee and APHIS after the participant meets the
conditions required for integrated pest risk management. Approval would
be withdrawn if the participant fails to meet the conditions at any
time. All documentation required under paragraph (a)(5) of proposed
Sec. 319.37-21 would be maintained by the exporting place of
production and made available to official representatives of the NPPO
of the exporting country and APHIS upon request. The place of
production would have to be open to necessary and reasonable audit,
monitoring, and evaluation of compliance by the NPPO of the exporting
country and APHIS. The management of the place of production would be
responsible for complying with the integrated pest risk management
measures. Management would have to specify the roles and
responsibilities of its personnel to perform program activities. The
place of production would have to notify the NPPO of the exporting
country of deficiencies detected during internal audits. The NPPO of
the exporting country would be responsible for ensuring that the place
of production is in compliance with the integrated pest risk management
measures. These requirements are all necessary to properly establish
accountability for the successful implementation of integrated pest
risk management measures by the place of production.
The most important requirement for the place of production is its
program to manage pests. Under proposed paragraph (a)(1), the place of
production would have to develop and implement an approved pest
management program that contains ongoing pest monitoring and procedures
for the exclusion and control of plant pests. The place of production
would have to obtain material used to produce plants for planting from
sources that are free of quarantine pests and that are approved by the
NPPO of the exporting country and APHIS. All sources of plants for
planting and the phytosanitary status of those plants would have to be
well-documented, and the program for producing plants for planting
would have to be carefully monitored.
Under proposed paragraph (a)(2), a training program approved by the
NPPO of the exporting country and APHIS would have to be established,
documented, and regularly conducted at the place of production. The
training program would have to ensure that all those involved in the
export program possess specific knowledge related to the relevant
components of the program and a general understanding of its
requirements. This requirement would ensure that the pest management
program is properly implemented.
[[Page 24650]]
To ensure that the pest management program is effective, proposed
paragraph (a)(3) would require the place of production to perform, or
designate parties to perform internal audits that ensure that a plan
approved and documented by APHIS and the NPPO of the exporting country
is being followed and is achieving the appropriate level of pest
management.
Proposed paragraph (a)(4) would require the place of production to
implement a procedure approved by APHIS and the NPPO of the exporting
country or its designee that documents and identifies plants from
propagation through harvest and sale to ensure that plants can be
traced forward and back from the place of production. The system would
at a minimum have to account for:
The origin and pest status of mother stock. To clarify the
meaning of this term, we would define mother stock in Sec. 319.37-2 as
a group of plants from which plant parts are taken to produce new
plants;
The year of propagation and the place of production of all
plant parts that make up the plants for planting intended for export;
Geographic location of the place of production;
Location of plants for planting within the place of
production;
The plant taxon; and
The purchaser's identity.
This requirement would ensure that, in the event of a pest problem,
all responsible parties could quickly identify the source and potential
distribution of the problem.
To ensure a common understanding of the integrated measures, under
proposed paragraph (a)(5), the place of production would be required to
develop a manual approved by the NPPO of the exporting country and
APHIS that guides the place of production's operation and that includes
the following components:
Administrative procedures (including roles and
responsibilities and training procedures);
Pest management plan;
Place of production internal audit procedures;
Management of noncompliant product or procedures;
Traceability procedures; and
Recordkeeping systems.
Proposed paragraph (a)(6) would require the place of production to
maintain records on its premises as specified by APHIS and the NPPO of
the exporting country. These records would have to be made available to
APHIS and the NPPO of the exporting country upon request. These
documents would include all the elements described in proposed
paragraph (a) and copies of all internal and external audit documents
and reports.
Proposed paragraph (b) would describe the joint responsibilities of
APHIS and the NPPO of the exporting country. Under this paragraph,
APHIS and the NPPO of the exporting country would be responsible for
collaborating to establish program requirements, including workplans
and compliance agreements as necessary, for recognizing and
implementing particular import programs. Technically justified
modifications to the program would be negotiated. The administration of
program requirements would include such elements as clarification of
terminology, testing and retesting requirements, eligibility, the
nomenclature of certification levels, horticultural management,
isolation and sanitation requirements, inspection, documentation,
identification and labeling, quality assurance, noncompliance and
remedial measures, and postentry quarantine requirements. The criteria
for approving, suspending, removing, and reinstating approval for a
particular program would be jointly developed and agreed upon by APHIS
and the NPPO of the exporting country. Information would be exchanged
between APHIS and the NPPO of the exporting country through officially
designated contact points.
Proposed paragraph (c) would describe the responsibilities of the
NPPO of the exporting country. Paragraph (c)(1) would require the NPPO
of the exporting country to provide sufficient information to APHIS to
support the evaluation and acceptance of export programs. This could
include:
Specific identification of the commodity, place of
production, and expected volume and frequency of consignments;
Relevant production, harvest, packing, handling, and
transport details;
Pests associated with the plant including prevalence,
distribution, and damage potential;
Risk management measures proposed for a pest management
program; and
Relevant efficacy data.
Proposed paragraph (c)(2) would require a phytosanitary certificate
to be issued by the NPPO of the exporting country unless APHIS and the
NPPO of the exporting country agree to use other documentation in
accordance with proposed Sec. 319.37-6(c).
Under proposed paragraph (c)(3), other responsibilities of the NPPO
of the exporting country would include:
Establishing and maintaining compliance agreements as
necessary;
Oversight and enforcement of program provisions;
Arrangements for monitoring and audit; and
Maintaining appropriate records.
Paragraph (d) of proposed Sec. 319.37-21 would address the
responsibilities of plant brokers. Persons trading in plants for
planting intended for export without growing the plants (referred to as
plant brokers) would have to be approved by the NPPO of the exporting
country or its designee. The list of plant brokers would have to be
provided to APHIS upon request. Approval would only be conferred by the
NPPO or its designee after the participant meets the requirements of
proposed paragraph (d). Approval would have to be withdrawn if the
participant fails to meet the conditions at any time. Plant brokers
would have to ensure the traceability of export consignments to an
approved place of production or production site. Brokers would have to
maintain the phytosanitary status of the plants in a manner equivalent
to an approved place of production from purchase, storage, and
transportation to the export destination. Plant brokers would have to
document these processes for verifying status and maintaining
traceability.
Paragraph (e) of proposed Sec. 319.37-21 would set out
requirements for external audits. APHIS and the NPPO of the exporting
country would agree to the requirements for auditing.
Under proposed paragraph (e)(1), APHIS would evaluate the
integrated pest risk management measures of the NPPO of the exporting
country before acceptance. This could consist of documentation review,
site visits, and inspection and testing of plants produced under the
system. Following approval, APHIS or its designee would monitor and
periodically audit the system to ensure that it continues to meet the
stated objectives. Audits would include inspection of imported plants
for planting, site visits, and review of the integrated pest risk
management measures and internal audit processes of the place of
production and the NPPO of the exporting country.
Under proposed paragraph (e)(2), the NPPO of the exporting country
would arrange for audits of the exporting system. Audits would be
conducted by the NPPO or its designee and may consist of inspection and
testing of plants for planting and the documentation and management
practices as they relate to the program. Audits would verify that:
The places of production in the program are free of
quarantine pests;
[[Page 24651]]
Program participants are complying with the specified
standards;
The integrated pest management measures continue to meet
APHIS requirements; and
Arrangements with designees are complied with.
Paragraph (f) of proposed Sec. 319.37-21 would set out procedures
in case of noncompliance. Proposed paragraph (f)(1) would require the
exporting NPPO to notify APHIS of noncompliance within the integrity of
the system or noncompliance by a place of production that affects the
phytosanitary integrity of the plants for planting. The requirements
for notification would be determined between the NPPO of the exporting
country and APHIS.
Proposed paragraph (f)(2) would indicate that regulatory responses
to program failures would be based on existing bilateral agreements.
Contingency plans could be established in advance to ensure that
alternative measures are available in the event that all or part of a
program fails. APHIS would specify the consequences of noncompliance to
the NPPO of the exporting country. The NPPO would have to specify the
consequences of noncompliance to the participants in the program. These
could vary depending on the nature and severity of the infraction. In
addition, remedial measures would be specified to enable a suspended or
decertified place of production or plant broker to become eligible for
reinstatement or recertification.
Proposed paragraph (f)(3) would require places of production or
plant brokers that do not meet the conditions of the program to be
suspended. Plants for planting could not be exported from a place of
production or a plant broker that has failed to meet the program
requirements.
Proposed paragraph (f)(4) would require the effectiveness of
remedial measures taken to be verified before reinstatement to the
program by the exporting NPPO, and where appropriate, by APHIS.
As can be seen, the requirements in proposed Sec. 319.37-21 are
general requirements that could be adapted to any quarantine pests and
any measures used to control or exclude them from places of production.
They would provide a comprehensive framework for the development of
specific requirements. We invite public comment on whether other
aspects of implementing integrated pest risk management measures should
be included in the regulations.
Trust Fund Agreements
Some of the tasks undertaken in support of integrated pest risk
management measures would require APHIS to perform phytosanitary
services (for example, audits) in the exporting country. To ensure that
APHIS is properly reimbursed for its services, proposed Sec. 319.37-22
would provide for the creation of trust funds in order to fund such
activities, similar to those currently required in paragraphs
(r)(3)(xv) and (v)(7) of Sec. 319.37-5.
Under proposed Sec. 319.37-22, if APHIS personnel need to be
physically present in an exporting country or region to facilitate the
exportation of plants for planting and APHIS services are to be funded
by the NPPO of the exporting country or a private export group, then
the NPPO or the private export group would have to enter into a trust
fund agreement with APHIS that is in effect at the time APHIS' services
are needed. Under the agreement, the NPPO of the exporting country or
the private export group would be required to pay in advance all
estimated costs that APHIS expects to incur in providing inspection
services in the exporting country. These costs would include
administrative expenses incurred in conducting the services and all
salaries (including overtime and the Federal share of employee
benefits), travel expenses (including per diem expenses), and other
incidental expenses incurred by the inspectors in performing services.
The agreement would require the NPPO of the exporting country or region
or a private export group to deposit a certified or cashier's check
with APHIS for the amount of those costs, as estimated by APHIS. The
agreement would have to specify that, if the deposit is not sufficient
to meet all costs incurred by APHIS, the NPPO of the exporting country
or a private export group must deposit with APHIS, before the services
will be completed, a certified or cashier's check for the amount of the
remaining costs, as determined by APHIS. After a final audit at the
conclusion of each shipping season, any overpayment of funds would be
returned to the NPPO of the exporting country or region or a private
export group, or held on account.
Postentry Quarantine
Proposed Sec. 319.37-23 would contain requirements for postentry
quarantine. Under current Sec. 319.37-7, certain taxa of plants for
planting are required to be grown in postentry quarantine in order to
determine whether they are infested with quarantine pests, typically
pathogens. Section 319.37-7 also provides a framework of requirements
under which postentry quarantine must be conducted and completed. We
would move the lists of taxa that must be grown in postentry quarantine
that are currently found in paragraphs (a) and (b) of Sec. 319.37-7 to
the Plants for Planting Manual. However, we would retain much of the
framework in the regulations, since it is generally applicable to
growing plants for planting in postentry quarantine.
Paragraph (a) of proposed Sec. 319.37-23 would contain the
requirements currently in the introductory text of paragraph (a) of
Sec. 319.37-7, before the table of restricted articles for which
postentry quarantine is required. The paragraph would explain that one
specific restriction that may be placed upon the importation of a type
of plants for planting in accordance with proposed Sec. 319.37-20 is
that it be grown in postentry quarantine. Plants for planting grown in
postentry quarantine could be grown under postentry quarantine
conditions specified in paragraphs (c) and (d) of proposed Sec.
319.37-23, and could be imported or offered for importation into the
United States only:
If destined for a State that has completed a State
postentry quarantine agreement with APHIS;
If an importer postentry quarantine growing agreement has
been completed and submitted to PPQ. (This agreement is currently
referred to simply as a ``postentry quarantine agreement,'' but we
believe specifying that it is the importer's agreement would better
differentiate it from the State postentry quarantine agreement.) The
agreement would have to be signed by the person (the importer) applying
for a written permit for importation of the plants for planting in
accordance with proposed Sec. 319.37-5; and,
If PPQ has determined that the completed postentry
quarantine growing agreement fulfills the applicable requirements of
proposed Sec. 319.37-23 and that services by State inspectors are
available to monitor and enforce the postentry quarantine.
Paragraph (b) of proposed Sec. 319.37-23 would set out
requirements for State postentry quarantine agreements. Such
requirements are currently found in paragraph (c) of Sec. 319.37-7. We
believe that there is no need to retain the level of detail regarding
such agreements that is found in current paragraph (c), which sets out
extensive requirements that States must meet in order to be sites for
postentry quarantine; for example, the paragraph includes detailed
requirements for State laws and
[[Page 24652]]
regulations, duties of State inspectors, services APHIS agrees to
provide, and provisions for termination of a State postentry quarantine
agreement. Current paragraph (c) also lists the States with active
State postentry quarantine agreements.
Although we continue to believe that all these requirements are
necessary, we believe they would be better addressed in the agreement
itself, rather than detailed in the regulations. This would allow us to
tailor State postentry quarantine agreements to specific circumstances
and to simplify the regulations. Accordingly, proposed paragraph (b)
would state only that plants for planting required to undergo postentry
quarantine in accordance with proposed Sec. 319.37-23 may only be
imported if destined for postentry quarantine growing in a State which
has entered into a written agreement with APHIS, signed by the
Administrator or his or her designee and by the State Plant Regulatory
Official (SPRO). Proposed paragraph (b) would note that, in accordance
with the laws of individual States, inspection and other postentry
quarantine services provided by a State may be subject to charges
imposed by the State.
Rather than include the list of States that have entered into a
postentry quarantine agreement in the regulations, we would provide
such a list of States in the Plants for Planting Manual. This would
allow us to quickly update the list if changes are necessary, providing
up-to-date information to stakeholders. The list of States with a
postentry quarantine agreement (all U.S. States and Territories, except
the District of Columbia, Guam, Hawaii, Kansas, and the Northern
Mariana Islands) would not change; it would simply be moved to the
manual.
Proposed paragraph (c) of Sec. 319.37-23 would contain
requirements for importer postentry quarantine growing agreements. Such
requirements are currently found in paragraph (d) of Sec. 319.37-7.
Similar to the requirements for State postentry quarantine agreements,
we would simplify the requirements currently found in Sec. 319.37-7(d)
in proposed paragraph (c). Proposed paragraph (c) would require that
any plants for planting required to be grown under postentry quarantine
conditions, as well as any increase therefrom, be grown in accordance
with an importer postentry quarantine growing agreement signed by the
person (the importer) applying for a written permit in accordance with
Sec. 319.37-5 for importation of the plants for planting and submitted
to PPQ. On each importer postentry quarantine growing agreement, the
person would also have to obtain the signature of the SPRO for the
State in which plants for planting covered by the agreement will be
grown. (Currently, APHIS is required to obtain the signature of the
SPRO; however, in practice, we have required the person obtaining the
permit to obtain the SPRO's signature, and it is appropriate to require
that the person seeking to grow plants in postentry quarantine obtain
the necessary approvals to do so. Therefore, we are proposing to update
the regulations to match current practice.)
The importer postentry quarantine growing agreement would specify
the kind, number, and origin of plants to be imported; the conditions
specified in the Plants for Planting Manual under which the plants for
planting will be grown, maintained, and labeled; and the reporting
requirements in the case of abnormal or dead plants for planting. The
agreement would certify to APHIS and to the State in which the plants
for planting are grown that the signer of the agreement will comply
with the conditions of the agreement for the postentry quarantine
growing period prescribed for the type of plants for planting in the
Plants for Planting Manual. (The standard postentry quarantine growing
period, as described in current paragraph (d)(7), is 2 years, but some
taxa are grown for other periods; we would move all these requirements
to the Plants for Planting Manual.)
All these elements of the postentry quarantine growing agreement
are described in more detail in current Sec. 319.37-7(d); retaining
less detailed performance standards in proposed Sec. 319.37-23(c)
would allow us to tailor postentry quarantine growing agreements to
specific circumstances and to simplify the regulations.
Paragraph (d) of proposed Sec. 319.37-23 would specify how to
apply for permits. A completed importer postentry quarantine agreement
would have to accompany the application for a written permit for plants
for planting required to be grown under postentry quarantine
conditions. Importer postentry quarantine agreement forms would be
available without charge from APHIS, PPQ, Permit Unit, 4700 River Road
Unit 136, Riverdale, Maryland 20737-1236 or on the Internet at http://www.aphis.usda.gov/permits/ppq_epermits.shtml. We are proposing to
update the address for importer postentry quarantine agreement forms
and add a Web address for convenience.
Paragraph (e) of proposed Sec. 319.37-23 would address inspector-
ordered disposal, movement, or safeguarding of plants for planting,
costs and charges, and civil and criminal liabilities. It would be
taken unchanged from current paragraph (f) of Sec. 319.37-7.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The proposed rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
In accordance with 5 U.S.C. 603, we have performed an initial
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this proposed rule on small entities. Copies of
the full analysis are available by contacting the person listed under
FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see
ADDRESSES above for instructions for accessing Regulations.gov).
Based on the information we have, there is no reason to conclude
that adoption of this proposed rule would result in any significant
economic effect on a substantial number of small entities. However, we
do not currently have all of the data necessary for a comprehensive
analysis of the effects of this proposed rule on small entities.
Therefore, we are inviting comments on potential effects. In
particular, we are interested in determining the number and kind of
small entities that may incur benefits or costs from the implementation
of this proposed rule.
While nearly all importers of plants for planting that would be
directly affected by the proposed rule are small, APHIS believes it
unlikely that any economic impacts would be significant, including
instances in which phytosanitary certification would be newly required.
The proposed changes would facilitate access to information on import
restrictions for specific types of plants for planting, and create a
more efficient process for amending import requirements.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
[[Page 24653]]
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects
7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
7 CFR Part 340
Administrative practice and procedure, Biotechnology, Genetic
engineering, Imports, Packaging and containers, Plant diseases and
pests, Transportation.
Accordingly, we propose to amend 7 CFR parts 319 and 340 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.
0
2. Section 319.8 is amended as follows:
0
a. By redesignating paragraph (b) as paragraph (c).
0
b. By adding a new paragraph (b) to read as set forth below.
Sec. 319.8 Notice of quarantine.
* * * * *
(b) The importation of cotton plants (including any plant parts)
that are for planting or capable of being planted is restricted in
``Subpart--Plants for Planting'' of this part.
* * * * *
Sec. 319.8-1 [Amended]
0
3. In Sec. 319.8-1, the definition of cottonseed is amended by adding
the words ``and that is intended for processing or consumption'' before
the period.
0
4. Section 319.15 is amended as follows:
0
a. By redesignating paragraph (b) as paragraph (c).
0
b. By adding a new paragraph (b) to read as set forth below.
Sec. 319.15 Notice of quarantine.
* * * * *
(b) The importation of sugarcane plants (including any plant parts)
that are for planting or capable of being planted is restricted in
``Subpart--Plants for Planting'' of this part.
* * * * *
Subpart--Citrus Canker and Other Citrus Diseases [Removed]
0
5. Subpart--Citrus Canker and Other Citrus Diseases, consisting of
Sec. 319.19, is removed.
0
6. Section 319.24 is amended as follows:
0
a. By redesignating paragraphs (b) through (d) as paragraphs (c)
through (e), respectively.
0
b. By adding a new paragraph (b) to read as set forth below.
Sec. 319.24 Notice of quarantine.
* * * * *
(b) The importation of corn plants (including any plant parts) that
are for planting or capable of being planted is restricted in
``Subpart--Plants for Planting'' of this part.
* * * * *
0
7. Subpart--Plants for Planting, Sec. Sec. 319.37 through 319.37-14,
is revised to read as follows:
Subpart--Plants for Planting
Sec.
319.37-1 Notice of quarantine.
319.37-2 Definitions.
319.37-3 General restrictions on the importation of plants for
planting.
319.37-4 Taxa of plants for planting whose importation is not
authorized pending pest risk analysis.
319.37-5 Permits.
319.37-6 Phytosanitary certificates.
319.37-7 Marking and identity.
319.37-8 Ports of entry: Approved ports, notification of arrival,
inspection, and refusal of entry.
319.37-9 Treatment of plants for planting; costs and charges for
inspection and treatment; treatments applied outside the United
States.
319.37-10 Growing media.
319.37-11 Packing and approved packing material.
319-37-12 through 319.37-19 [Reserved]
319.37-20 Restrictions on the importation of specific types of
plants for planting.
319.37-21 Integrated pest risk management measures.
319.37-22 Trust fund agreements.
319.37-23 Postentry quarantine.
Subpart--Plants for Planting
Sec. 319.37-1 Notice of quarantine.
(a) Under section 412(a) of the Plant Protection Act, the Secretary
of Agriculture may prohibit or restrict the importation and entry of
any plant or plant product if the Secretary determines that the
prohibition or restriction is necessary to prevent the introduction
into the United States or the dissemination within the United States of
a plant pest or noxious weed.
(b) The Secretary has determined that it is necessary to designate
the importation of certain taxa of plants for planting as not
authorized pending pest risk analysis, as provided in Sec. 319.37-4.
The Secretary has determined that it is necessary to restrict the
importation into the United States of all other plants for planting and
to impose additional restrictions on the importation of specific types
of plants for planting, in accordance with this subpart and as
described in the Plants for Planting Manual.
(c) The importation of plants that are imported for processing, as
determined by an inspector based on documentation accompanying the
articles, is not subject to this subpart.
(d) The importation of taxa of plants for planting that are listed
in parts 360 and 361 of this chapter is subject to the restrictions in
those parts.
(e) The Plant Protection and Quarantine Programs also enforces
regulations promulgated under the Endangered Species Act of 1973 (16
U.S.C. 1531-1544) which contain additional prohibitions and
restrictions on importation into the United States of plants for
planting subject to this subpart (see 50 CFR parts 17 and 23).
(f) One or more common names of plants for planting are given in
parentheses after most scientific names (when common names are known)
for the purpose of helping to identify the plants for planting
represented by such scientific names; however, unless otherwise
specified, a reference to a scientific name includes all plants for
planting within the taxon represented by the scientific name regardless
of whether the common name or names are as comprehensive in scope as
the scientific name. When restrictions apply to the importation of a
taxon of plants for planting for which there are taxonomic synonyms,
those restrictions apply to the importation of all the synonyms of that
taxon as well.
Sec. 319.37-2 Definitions.
The following definitions apply to this subpart:
Administrator. The Administrator of the Animal and Plant Health
Inspection Service, United States Department of Agriculture, or any
other employee of the United States Department of Agriculture
authorized to act in his or her stead.
Bulb. The portion of a plant commonly known as a bulb, bulbil,
bulblet, corm, cormel, rhizome, tuber, or pip, and including fleshy
roots or other underground fleshy growths, a unit of which produces an
individual plant.
Consignment. A quantity of plants for planting being moved from one
country to another and covered, when required, by a single
phytosanitary certificate (a
[[Page 24654]]
consignment may be composed of one or more lots or taxa).
Earth. The softer matter composing part of the surface of the
globe, in distinction from the firm rock, and including the soil and
subsoil, as well as finely divided rock and other soil formation
materials down to the rock layer.
From. Plants for planting are considered to be ``from'' any country
or locality in which it was grown. Provided, That plants for planting
imported into Canada from another country or locality shall be
considered as being solely from Canada if they meet the following
conditions:
(1) They are imported into the United States directly from Canada
after having been grown for at least 1 year in Canada,
(2) They have never been grown in a country from which their
importation would not be authorized pending pest risk analysis under
Sec. 319.37-4,
(3) They have never been grown in a country other than Canada from
which it would be subject to certain restrictions on the importation of
specific types of plants for planting under Sec. 319.37-20, which are
listed in the Plants for Planting Manual; Provided, that plants for
planting that would be subject to postentry quarantine if imported into
the United States may be imported from Canada after growth in another
country if they were grown in Canada in postentry quarantine under
conditions equivalent to those specified in the Plants for Planting
Manual, and
(4) They were not imported into Canada in growing media.
Inspector. Any individual authorized by the Administrator or the
Commissioner of Customs and Border Protection, Department of Homeland
Security, to enforce the regulations in this part.
Lot. A number of units of a single commodity, identifiable by its
homogeneity of composition and origin, forming all or part of a
consignment.
Mother stock. A group of plants from which plant parts are taken to
produce new plants.
National plant protection organization (NPPO). The official service
established by a government to discharge the functions specified by the
International Plant Protection Convention.
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.
Person. Any individual, partnership, corporation, association,
joint venture, or other legal entity.
Phytosanitary certificate. A document relating to a consignment of
plants for planting, which is issued by an official of the NPPO of the
country in which the plants for planting were grown, which is issued
not more than 15 days prior to shipment of the plants for planting from
the country in which grown, which is addressed to the NPPO of the
United States (Plant Protection and Quarantine Programs), which
contains a description of the plants for planting intended to be
imported into the United States, which certifies that the plant has
been thoroughly inspected, is believed to be free from quarantine
pests, and is otherwise believed to be eligible for importation
pursuant to the current phytosanitary laws and regulations of the
United States, and which contains any specific additional declarations
required in accordance with Sec. 319.37-20 and specified in the Plants
for Planting Manual.
Place of production. Any premises or collection of fields operated
as a single production or farming unit. This may include a production
site that is separately managed for phytosanitary purposes.
Plant. 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.
Plant pest. Any living stage of any of the following that can
directly or indirectly injure, cause damage to, or cause disease in any
plant or plant product: A protozoan, a nonhuman animal, a parasitic
plant, a bacterium, a fungus, a virus or viroid, an infectious agent or
other pathogen, or any article similar to or allied with any of these
articles.
Plant Protection and Quarantine Programs. The organizational unit
with the Animal and Plant Health Inspection Service, U.S. Department of
Agriculture, delegated responsibility for enforcing provisions of the
Plant Protection Act (7 U.S.C. 7701 et seq.) and related legislation,
quarantines, and regulations.
Plants for planting. Regulated plants (including any plant parts)
that are for planting or capable of being planted.
Plants for Planting Manual. The document that contains restrictions
on the importation of specific types of plants for planting, as
provided in Sec. 319.37-20, and other information about the
importation of plants for planting as provided in this subpart. The
Plants for Planting Manual is available on the Internet at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/plants_for_planting.pdf or by contacting the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, 4700 River Road
Unit 133, Riverdale, MD 20737-1236.
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.
Port of first arrival. The land area (such as a seaport, airport,
or land border station) where a person, or a land, water, or air
vehicle, first arrives after entering the territory of the United
States, and where inspection of plants for planting is carried out by
inspectors.
Preclearance. Phytosanitary inspection and/or clearance in the
country in which the plants for planting were grown, performed by or
under the regular supervision of APHIS.
Production site. A defined portion of a place of production
utilized for the production of a commodity that is managed separately
for phytosanitary purposes. This may include the entire place of
production or portions of it. Examples of portions of places of
production are a defined orchard, grove, field, greenhouse,
screenhouse, or premises.
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.
Secretary. The Secretary of Agriculture, or any other officer or
employee of the Department of Agriculture to whom authority to act in
his/her stead has been or may hereafter be delegated.
Soil. The loose surface material of the earth in which plants,
trees, and shrubs
[[Page 24655]]
grow, in most cases consisting of disintegrated rock with an admixture
of organic material and soluble salts.
Species (spp.). All species, clones, cultivars, strains, varieties,
and hybrids of a genus.
State. Any of the several States of the United States, the
Commonwealth of the Northern Mariana Islands, the Commonwealth of
Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the
United States, or any other territory or possession of the United
States.
State Plant Regulatory Official. The official authorized by the
State to sign agreements with Federal agencies involving operations of
the State plant protection agency.
Taxon (taxa). Any grouping within botanical nomenclature, such as
family, genus, species, or cultivar.
Type of plants for planting. A grouping of plants for planting
based on shared characteristics such as biological traits, morphology,
botanical nomenclature, or risk factors.
United States. All of the States.
Sec. 319.37-3 General restrictions on the importation of plants for
planting.
(a) The importation of certain taxa of plants for planting is not
authorized pending pest risk analysis in accordance with Sec. 319.37-
4.
(b) General restrictions that apply to the importation of all
plants for planting other than those whose importation is not
authorized pending pest risk analysis are found in Sec. Sec. 319.37-5
through 319.37-11.
(c) In accordance with Sec. 319.37-20, the Administrator may
impose restrictions on the importation of specific types of plants for
planting. These restrictions are listed in the Plants for Planting
Manual. Additional information on certain restrictions on the
importation of specific types of plants for planting can be found in
Sec. Sec. 319.37-21 through 319.37-23.
Sec. 319.37-4 Taxa of 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 paragraph (f) of this section. These taxa are
listed in the Plants for Planting Manual. 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 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 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 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 whose importation is 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 as well as measures available to mitigate that risk. The
pest risk analysis may analyze importation of the taxon from a specific
area, country, or countries, or from all areas of the world. The
conclusions of the pest risk analysis will apply accordingly.
(2) If the pest risk analysis indicates that the taxon is a
quarantine pest or a host of a quarantine pest and the Administrator
determines that there are no measures available that adequately
mitigate the risk of introducing a quarantine pest into the United
States through the taxon's importation, we will continue to list the
taxon as not authorized for importation pending pest risk analysis. We
will publish a notice making the pest risk analysis available for
comment. If comments cause us to change our determination, we will
publish another notice in accordance with either paragraph (e)(3) or
paragraph (e)(4) of this section, as appropriate. If comments do not
cause us to change our determination, we will publish a second notice
responding to the comments and affirming our determination that the
taxon should continue to be listed as NAPPRA.
(3) If the pest risk analysis supports a determination that
importation of the taxon be allowed subject to taxon-specific
restrictions, APHIS will publish a notice making the pest risk analysis
available to the public for comment in accordance with the process in
Sec. 319.37-20(c).
(4) 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
[[Page 24656]]
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 comment.
(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.
(5) 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).
(f) Departmental permits. Any plants for planting whose importation
is not authorized pending pest risk analysis in accordance with this
section may be imported or offered for entry into the United States if:
(1) Imported by the United States Department of Agriculture for
experimental or scientific purposes;
(2) Imported at the National Plant Germplasm Inspection Station,
Building 580, Beltsville Agricultural Research Center East, Beltsville,
MD 20705 or through any Federal plant inspection station listed in the
Plants for Planting Manual;
(3) Imported pursuant to a Departmental permit issued for such
plants for planting and kept on file at the port of entry;
(4) Imported under conditions specified on the Departmental permit
and found by the Administrator to be adequate to prevent the
introduction into the United States of quarantine pests, i.e.,
conditions of treatment, processing, growing, shipment, disposal; and
(5) Imported with a Departmental tag or label securely attached to
the outside of the container containing the plants for planting or
securely attached to the plant itself if not in a container, and with
such tag or label bearing a Departmental permit number corresponding to
the number of the Departmental permit issued for such plants for
planting.
Sec. 319.37-5 Permits.
(a)(1) Plants for planting may be imported or offered for
importation into the United States only after issuance of a written
permit by the Plant Protection and Quarantine Programs, except as
provided in the Plants for Planting Manual. Exceptions from the
requirement for a written permit will be added, changed, or removed in
accordance with Sec. 319.37-20.
(2) Plants for planting whose importation is subject to postentry
quarantine, as listed in the Plants for Planting Manual must also be
imported under an importer postentry quarantine growing agreement in
accordance with Sec. 319.37-23(c).
(b) An application for a written permit should be submitted to the
Plant Protection and Quarantine Programs (Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Permits, Permit
Unit, 4700 River Road Unit 133, Riverdale, MD 20737-1236) at least 30
days prior to arrival of the plants for planting at the port of entry.
Application forms are available without charge from that address or on
the Internet at http://www.aphis.usda.gov/permits/ppq_epermits.shtml.
The completed application shall include the following information:
(1) Name, address, and telephone number of the importer;
(2) The taxon or taxa and the approximate quantity of plants for
planting intended to be imported;
(3) Country(ies) or locality(ies) where grown;
(4) Intended United States port of entry;
(5) Means of transportation, e.g., mail, airmail, express, air
express, freight, airfreight, or baggage; and
(6) Expected date of arrival.
(c) A permit indicating the applicable conditions for importation
under this subpart will be issued by Plant Protection and Quarantine
Programs if, after review of the application, the plants for planting
are deemed eligible to be imported into the United States under the
conditions specified in the permit. However, even if such a permit is
issued, the plants for planting may be imported only if all applicable
requirements of this subpart are met and only if an inspector at the
port of entry determines that no remedial measures pursuant to the
Plant Protection Act are necessary with respect to the plants for
planting.\1\
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\1\ An inspector may hold, seize, quarantine, treat, apply other
remedial measures to, destroy, or otherwise dispose of plants, plant
pests, or other articles in accordance with sections 414, 421, and
434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).
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(d) Any permit which has been issued may be withdrawn by an
inspector or the Administrator if he or she determines that the holder
thereof has not complied with any condition for the use of the
document. The reasons for the withdrawal shall be confirmed in writing
as promptly as circumstances permit. Any person whose permit has been
withdrawn may appeal the decision in writing to the Administrator
within 10 days after receiving the written notification of the
withdrawal. The appeal shall state all of the facts and reasons upon
which the person relies to show that the permit was wrongfully
withdrawn. The Administrator shall grant or deny the appeal, in
writing, stating the reasons for the decision as promptly as
circumstances permit. If there is a conflict as to any material fact, a
hearing shall be held to resolve such conflict.
(e) Any plants for planting not required to be imported with a
permit in accordance with paragraph (a) of this section may be imported
or offered for importation into the United States only after issuance
of an oral permit for importation issued by an inspector at the port of
entry.
(f) An oral permit for importation of plants for planting shall be
issued at a port of entry by an inspector only if all applicable
requirements of this subpart are met, such plants for planting are
eligible to be imported under an oral permit, and an inspector at the
port of entry determines that no measures pursuant to section 414 of
the Plant Protection Act (7 U.S.C. 7714) are necessary with respect to
such plants for planting.\1\
Sec. 319.37-6 Phytosanitary certificates.
(a) Phytosanitary certificates. Any plants for planting offered for
importation into the United States must be accompanied by a
phytosanitary certificate, except as described in paragraphs (b) and
(c) of this section.
[[Page 24657]]
The phytosanitary certificate must identify the genus of the plants for
planting it accompanies. When the importation of individual species or
cultivars within a genus is restricted in accordance with Sec. 319.37-
20, the phytosanitary certificate must also identify the species or
cultivar of the plants for planting 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.
(b) Small lots of seed. Lots of seed may be imported without a
phytosanitary certificate required by paragraph (a) of this section
under the following conditions:
(1) The importation of the seed is authorized by a written permit
issued in accordance with Sec. 319.37-5.
(2) The seed is not listed as not authorized pending pest risk
analysis, as provided in Sec. 319.37-4; is not of any noxious weed
species listed in part 360 of this chapter; is not subject to
restrictions on specific types of plants for planting as provided in
Sec. 319.37-20; is not restricted under the regulations in parts 330
and 340 of this chapter; and meets the requirements of part 361 of this
chapter.
(3) The seed meets the following packaging and shipping
requirements:
(i) Each seed packet is clearly labeled with the name of the
collector/shipper, the country of origin, and the scientific name at
least to the genus, and preferably to the species, level;
(ii) There are a maximum of 50 seeds of 1 taxon (taxonomic category
such as genus, species, cultivar, etc.) per packet; or a maximum weight
not to exceed 10 grams of seed of 1 taxon per packet;
(iii) There are a maximum of 50 seed packets per shipment;
(iv) The seeds are free from pesticides;
(v) The seeds are securely packaged in packets or envelopes and
sealed to prevent spillage;
(vi) The shipment is free from soil, plant material other than
seed, other foreign matter or debris, seeds in the fruit or seed pod,
and living organisms such as parasitic plants, pathogens, insects,
snails, mites; and
(vii) At the time of importation, the shipment is sent to either
the Plant Germplasm Quarantine Center in Beltsville, MD, or a USDA
plant inspection station.
(c) Importation of other plants for planting without phytosanitary
certificates. (1) The Administrator may authorize the importation of
types of plants for planting without a phytosanitary certificate if the
plants for planting are accompanied by equivalent documentation agreed
upon by the Administrator and the NPPO of the exporting country as
sufficient to establish the origin, identity, and quarantine pest
status of the plants. The documentation must be provided by the NPPO or
refer to documentation of the origin, identity, and quarantine pest
status of the plants for planting provided by the NPPO. The
documentation must be agreed upon before the plants for planting are
exported from the exporting country to the United States.
(2) The Administrator may impose additional restrictions on the
importation of plants for planting that are not accompanied by a
phytosanitary certificate to ensure that the plants are appropriately
identified and free of quarantine pests.
(3) The Plants for Planting Manual lists types of plants for
planting that are not required to be accompanied by a phytosanitary
certificate; the countries from which their importation without a
phytosanitary certificate is authorized; the approved documentation of
their origin, identity, and quarantine pest status; and any additional
conditions on their importation.
(4) Types of plants for planting may be added to or removed from
the list of plants for planting that are not required to be accompanied
by a phytosanitary certificate in accordance with Sec. 319.37-20. The
requirements for importing types of plants for planting without a
phytosanitary certificate may also be changed in accordance with Sec.
319.37-20. The notice published for comment will describe the
documentation agreed upon by the Administrator and the NPPO of the
exporting country and any additional restrictions to be imposed on the
importation of the type of plants for planting.
Sec. 319.37-7 Marking and identity.
(a) Any plants for planting for importation other than by mail at
the time of importation or offer for importation into the United States
shall plainly and correctly bear on the outer container (if in a
container) or the plants for planting (if not in a container) the
following information:
(1) General nature and quantity of the contents,
(2) Country and locality where grown,
(3) Name and address of shipper, owner, or person shipping or
forwarding the plants for planting,
(4) Name and address of consignee,
(5) Identifying shipper's mark and number, and
(6) Number of written permit authorizing the importation, if one
was required under Sec. 319.37-5.
(b) Any plants for planting for importation by mail shall be
plainly and correctly addressed and mailed to the Plant Protection and
Quarantine Programs at a port of entry listed in the Plants for
Planting Manual as approved to receive imported plants for planting,
shall be accompanied by a separate sheet of paper within the package
plainly and correctly bearing the name, address, and telephone number
of the intended recipient, and shall plainly and correctly bear on the
outer container the following information:
(1) General nature and quantity of the contents,
(2) Country and locality where grown,
(3) Name and address of shipper, owner, or person shipping or
forwarding the plants for planting, and
(4) Number of written permit authorizing the importation, if one
was required under Sec. 319.37-5.
(c) Any plants for planting for importation (by mail or otherwise),
at the time of importation or offer for importation into the United
States shall be accompanied by an invoice or packing list indicating
the contents of the consignment.
Sec. 319.37-8 Ports of entry: Approved ports, notification of
arrival, inspection, and refusal of entry.
(a) Approved ports of entry. Any plants for planting required to be
imported under a written permit pursuant to Sec. 319.37-5(a), if not
precleared, may be imported or offered for importation only at a USDA
plant inspection station listed in the Plants for Planting Manual.
Ports of entry through which plants for planting must pass before
arriving at these USDA plant inspection stations are listed in the
Plants for Planting Manual. Any other plants for planting that are not
required to be imported under a written permit pursuant to Sec.
319.37-5(a) may be imported or offered for importation at any Customs
designated port of entry indicated in 19 CFR 101.3(b)(1). Exceptions
may be listed in Sec. 330.104 of this chapter. Plants for planting
that are required to be imported under a written permit that are also
precleared in the country of export are not required to enter at an
inspection station and may enter through any Customs port of entry.
Exceptions may be listed in Sec. 330.104 of this chapter.
(b) Notification upon arrival at the port of entry. Promptly upon
arrival of any plants for planting at a port of entry,
[[Page 24658]]
the importer shall notify the Plant Protection and Quarantine Programs
of the arrival by such means as a manifest, Customs entry document,
commercial invoice, waybill, a broker's document, or a notice form
provided for that purpose.
(c) Inspection and treatment. Any plants for planting may be
sampled and inspected by an inspector at the port of first arrival and/
or under preclearance inspection arrangements in the country in which
the plants for planting were grown, and must undergo treatment in
accordance with part 305 of this chapter if treatment is ordered by the
inspector. Any plants for planting found upon inspection to contain or
be contaminated with quarantine pests that cannot be eliminated by
treatment will be denied entry at the first United States port of
arrival and must be destroyed or shipped to a point outside the United
States.
(d) Disposition of plants for planting not in compliance with this
subpart. The importer of any plants for planting denied entry for
noncompliance with this subpart must, at the importer's expense and
within the time specified in an emergency action notification (PPQ Form
523), destroy, ship to a point outside the United States, treat in
accordance with part 305 of this chapter, or apply other safeguards to
the plants for planting, as prescribed by an inspector, to prevent the
introduction into the United States of quarantine pests. In choosing
which action to order and in setting the time limit for the action, the
inspector shall consider the degree of pest risk presented by the plant
pest associated with the plants for planting, whether the plants for
planting are a host of the pest, the types of other host materials for
the pest in or near the port, the climate and season at the port in
relation to the pest's survival range, and the availability of
treatment facilities for the plants for planting.
(e) Removal of plants for planting from port of first arrival. No
person shall remove any plants for planting from the port of first
arrival unless and until notice is given to the collector of customs by
the inspector that the plants for planting has satisfied all
requirements under this subpart.
Sec. 319.37-9 Treatment of plants for planting; costs and charges for
inspection and treatment; treatments applied outside the United States.
(a) The services of a Plant Protection and Quarantine inspector
during regularly assigned hours of duty and at the usual places of duty
shall be furnished without cost to the importer.\2\ No charge will be
made to the importer for Government-owned or -controlled special
inspection facilities and equipment used in treatment, but the
inspector may require the importer to furnish any special labor,
chemicals, packing materials, or other supplies required in handling an
importation under the regulations in this subpart. The Plant Protection
and Quarantine Programs will not be responsible for any costs or
charges, other than those indicated in this section.
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\2\ Provisions relating to costs for other services of an
inspector are contained in part 354.
---------------------------------------------------------------------------
(b) Any treatment performed in the United States on plants for
planting must be performed at the time of importation into the United
States. Treatment shall be performed by an inspector or under an
inspector's supervision at a Government-operated special inspection
facility, except that an importer may have such treatment performed at
a nongovernmental facility if the treatment is performed at
nongovernment expense under the supervision of an inspector and in
accordance with part 305 of this chapter and in accordance with any
treatment required by an inspector as an emergency measure in order to
prevent the dissemination of any quarantine pests. However, treatment
may be performed at a nongovernmental facility only in cases of
unavailability of government facilities and only if, in the judgment of
an inspector, the plants for planting can be transported to such
nongovernmental facility without the risk of introduction into the
United States of quarantine pests.
(c) Any treatment performed outside the United States must be
monitored and certified by an APHIS inspector or an official from the
NPPO of the exporting country. If monitored and certified by an
official of the NPPO of the exporting country, then a phytosanitary
certificate must be issued with the following declaration: ``The
consignment of (fill in taxon) has been treated in accordance with 7
CFR part 305.'' During the entire interval between treatment and
export, the consignment must be stored and handled in a manner that
prevents any infestation by quarantine pests.
Sec. 319.37-10 Growing media.
(a) Any plants for planting at the time of importation or offer for
importation into the United States shall be free of sand, soil, earth,
and other growing media, except as provided in paragraph (b), (c), or
(d) of this section.
(b) Plants for planting from Canada may be imported in any growing
medium, except as restricted in the Plants for Planting Manual.
Restrictions on growing media for specific types of plants for planting
imported from Canada will be added, changed, or removed in accordance
with Sec. 319.37-20.
(c) Certain types of plants for planting growing solely in certain
growing media listed in the Plants for Planting Manual may be imported
established in such growing media. The Administrator has determined
that the importation of the specified types of plants for planting in
these growing media does not pose a risk of introducing quarantine
pests into the United States. If the Administrator determines that a
new growing medium may be added to the list of growing media in which
imported plants for planting may be established, or that a growing
medium currently listed for such purposes is no longer suitable for
establishment of imported plants for planting, APHIS will publish in
the Federal Register a notice that announces our determination and
requests comment on the change. After the close of the comment period,
APHIS will publish another notice informing the public regarding the
Administrator's decision on the change to the list of growing media in
which imported types of plants for planting may be established.
(d) Certain types of plants for planting, as listed in the Plants
for Planting Manual, may be imported when they are established in a
growing medium approved by the Administrator and they are produced in
accordance with additional requirements specified in the Plants for
Planting Manual. Changes to the list of plants for planting that may be
imported in growing media, and to the requirements for the importation
of those types of plants for planting, will be made in accordance with
Sec. 319.37-20.
Sec. 319.37-11 Packing and approved packing material.
(a) Plants for planting for importation into the United States must
not be packed in the same container as plants for planting whose
importation into the United States is not authorized pending pest risk
analysis in accordance with Sec. 319.37-4.
(b) Any plants for planting at the time of importation or offer for
importation into the United States shall not be packed in a packing
material unless the plants were packed in the packing material
immediately prior to shipment; such packing material is free from sand,
soil, or earth (except as designated in
[[Page 24659]]
the Plants for Planting Manual); has not been used previously as
packing material or otherwise; and is approved by the Administrator as
not posing a risk of introducing quarantine pests. Approved packing
materials are listed in the Plants for Planting Manual.
(c) If the Administrator determines that a new packing material may
be added to the list of packing materials, or that a packing material
currently listed should no longer be approved, APHIS will publish in
the Federal Register a notice that announces our determination and
requests comment on the change. After the close of the comment period,
APHIS will publish another notice informing the public regarding the
Administrator's decision on the change to the list of approved packing
materials.
Sec. Sec. 319-37-12 through 319.37-19 [Reserved]
Sec. 319.37-20 Restrictions on the importation of specific types of
plants for planting.
(a) Plant type-specific restrictions. In addition to the general
restrictions in this subpart, the Administrator may impose additional
restrictions on the importation of specific types of plants for
planting necessary to effectively mitigate the risk of introducing
quarantine pests into the United States through the importation of
those plants for planting. Additional restrictions may be placed on the
importation of the entire plant or on certain plant parts. A list of
the types of plants for planting whose importation is subject to
additional restrictions, and the specific restrictions that apply to
the importation of each type of plants for planting, may be found in
the Plants for Planting Manual.
(b) Basis for changing restrictions. The Administrator may
determine that it is necessary to add, change, or remove restrictions
on the importation of a specific type of plants for planting, based on
the risk of introducing a quarantine pest through the importation of
that type of plants for planting. The Administrator will make this
determination based on the findings of a pest risk analysis or on other
scientific evidence.
(c) Process for adding, changing, or removing restrictions.
Restrictions on the importation of a specific type of plants for
planting beyond the general restrictions in Sec. Sec. 319.37-5 through
319.37-11 will be changed through the following process:
(1) Document describing restrictions. APHIS will publish in the
Federal Register a notice that announces our determination that it is
necessary to add, change, or remove restrictions on the importation of
a specific type of plants for planting. This notice will make available
for public comment a document describing the restrictions that the
Administrator has determined are necessary and how these restrictions
will mitigate the risk of introducing quarantine pests into the United
States.
(2) Response to comments. APHIS will issue a notice after the close
of the public comment period on the notice described in paragraph
(c)(1) of this section. This notice will inform the public of the
specific restrictions, if any, that the Administrator has determined to
be necessary in order to mitigate the risk of introducing quarantine
pests into the United States through the importation of the type of
plants for planting. In response to the information submitted in public
comments, the Administrator may implement the restrictions described in
the document made available by the initial notice, amend the
restrictions in response to public comment, or determine that changes
to the restrictions on the importation of the type of plants for
planting are unnecessary.
(d) Previously imposed restrictions on specific types of plants for
planting. Types of plants for planting whose importation was subject to
specific restrictions by specific regulation as of [insert effective
date of final rule] will continue to be subject to those restrictions,
except as changed in accordance with the process specified in paragraph
(c) of this section. The restrictions will be found in the Plants for
Planting Manual.
Sec. 319.37-21 Integrated pest risk management measures.
If a type of plants for planting is a host of a quarantine pest or
pests, APHIS may require the type of plants for planting to be produced
in accordance with integrated pest risk management measures as a
condition of importation. This section sets out a general framework for
integrated pest risk management measures. When appropriate, APHIS will
require a type of plants for planting to be imported subject to
integrated pest risk management measures that mitigate the quarantine
pest risks associated with that type of plants for planting through the
process described in Sec. 319.37-20.
(a) Responsibilities of the place of production. The place of
production is responsible for identifying, developing, and implementing
procedures that meet the requirements of both the NPPO of the exporting
country and APHIS. Participants in the export program must be approved
by the NPPO or its designee and APHIS. Approval will be conferred by
the NPPO or its designee and APHIS after the participant meets the
conditions required for integrated pest risk management. Approval will
be withdrawn if the participant fails to meet the conditions at any
time. All documentation required under paragraph (a)(5) of this section
will be maintained by the exporting place of production and made
available to official representatives of the NPPO of the exporting
country and APHIS upon request. The place of production must be open to
necessary and reasonable audit, monitoring, and evaluation of
compliance by the NPPO of the exporting country and APHIS. The
management of the place of production will be responsible for complying
with the integrated pest risk management measures. Management must
specify the roles and responsibilities of its personnel to perform
program activities. The place of production must notify the NPPO of the
exporting country of deficiencies detected during internal audits. The
NPPO of the exporting country will be responsible for ensuring that the
place of production is in compliance with the integrated pest risk
management measures.
(1) Pest management program. The place of production must develop
and implement an approved pest management program that contains ongoing
pest monitoring and procedures for the exclusion and control of plant
pests. The place of production must obtain material used to produce
plants for planting from sources that are free of quarantine pests and
that are approved by the NPPO of the exporting country and APHIS. All
sources of plants for planting and the phytosanitary status of those
plants must be well-documented and the program for producing plants for
planting carefully monitored.
(2) Training. A training program approved by the NPPO of the
exporting country and APHIS must be established, documented, and
regularly conducted at the place of production. The training program
must ensure that all those involved in the export program possess
specific knowledge related to the relevant components of the program
and a general understanding of its requirements.
(3) Internal audits. The place of production must perform, or
designate parties to perform internal audits that ensure that a plan
approved and documented by APHIS and the NPPO of the exporting country
is being followed and is achieving the appropriate level of pest
management.
(4) Traceability. The place of production must implement a
procedure
[[Page 24660]]
approved by APHIS and the NPPO of the exporting country or its designee
that documents and identifies plants from propagation through harvest
and sale to ensure that plants can be traced forward and back from the
place of production. The system must at a minimum account for:
(i) The origin and pest status of mother stock;
(ii) The year of propagation and the place of production of all
plant parts that make up the plants for planting intended for export;
(iii) Geographic location of the place of production;
(iv) Location of plants for planting within the place of
production;
(v) The plant taxon; and
(vi) The purchaser's identity.
(5) Documentation of program procedures. The place of production
must develop a manual approved by the NPPO of the exporting country and
APHIS that guides the place of production's operation and that includes
the following components:
(i) Administrative procedures (including roles and responsibilities
and training procedures);
(ii) Pest management plan;
(iii) Place of production internal audit procedures;
(iv) Management of noncompliant product or procedures;
(v) Traceability procedures; and
(vi) Recordkeeping systems.
(6) Records. A place of production must maintain records on its
premises as specified by APHIS and the NPPO of the exporting country.
These records must be made available to APHIS and the NPPO of the
exporting country upon request. These documents include all the
elements described in this paragraph (a) and copies of all internal and
external audit documents and reports.
(b) Responsibilities of APHIS and the NPPO of the exporting
country. APHIS and the NPPO of the exporting country are responsible
for collaborating to establish program requirements, including
workplans and compliance agreements as necessary, for recognizing and
implementing particular import programs. Technically justified
modifications to the program may be negotiated. The administration of
program requirements must include such elements as clarification of
terminology, testing and retesting requirements, eligibility, the
nomenclature of certification levels, horticultural management,
isolation and sanitation requirements, inspection, documentation,
identification and labeling, quality assurance, noncompliance and
remedial measures, and postentry quarantine requirements. The criteria
for approving, suspending, removing, and reinstating approval for a
particular program should be jointly developed and agreed upon by APHIS
and the NPPO of the exporting country. Information should be exchanged
between APHIS and the NPPO of the exporting country through officially
designated contact points.
(c) Responsibilities of the NPPO of the exporting country. (1) The
NPPO of the exporting country must provide sufficient information to
APHIS to support the evaluation and acceptance of export programs. This
may include:
(i) Specific identification of the commodity, place of production,
and expected volume and frequency of consignments;
(ii) Relevant production, harvest, packing, handling, and transport
details;
(iii) Pests associated with the plant including prevalence,
distribution, and damage potential;
(iv) Risk management measures proposed for a pest management
program; and
(v) Relevant efficacy data.
(2) A phytosanitary certificate should be issued by the NPPO of the
exporting country unless APHIS and the NPPO of the exporting country
agree to use other documentation in accordance with Sec. 319.37-6(c).
(3) Other responsibilities of the NPPO of the exporting country
include:
(i) Establishing and maintaining compliance agreements as
necessary;
(ii) Oversight and enforcement of program provisions;
(iii) Arrangements for monitoring and audit; and
(iv) Maintaining appropriate records.
(d) Responsibilities of plant brokers trading in plants for
planting for export. Persons trading in plants for planting intended
for export without growing the plants (referred to as plant brokers)
must be approved by the NPPO of the exporting country or its designee.
The list of plant brokers must be provided to APHIS upon request.
Approval may only be conferred by the NPPO or its designee after the
participant demonstrates that it can meet the requirements of this
paragraph. Approval must be withdrawn if the participant fails to meet
the conditions at any time. Plant brokers must ensure the traceability
of export consignments to an approved place of production or production
site. Brokers must maintain the phytosanitary status of the plants in a
manner equivalent to an approved place of production from purchase,
storage, and transportation to the export destination. Plant brokers
must document these processes for verifying status and maintaining
traceability.
(e) External audits. APHIS and the NPPO of the exporting country
will agree to the requirements for external audits.
(1) APHIS audits. APHIS will evaluate the integrated pest risk
management measures of the NPPO of the exporting country before
acceptance. This could consist of documentation review, site visits,
and inspection and testing of plants produced under the system.
Following approval, APHIS or its designee will monitor and periodically
audit the system to ensure that it continues to meet the stated
objectives. Audits will include inspection of imported plants for
planting, site visits, and review of the integrated pest risk
management measures and internal audit processes of the place of
production and the NPPO of the exporting country.
(2) Audits by the NPPO of the exporting country. The NPPO must
arrange for audits of the exporting system. Audits may be conducted by
the NPPO or its designee and may consist of inspection and testing of
plants for planting and the documentation and management practices as
they relate to the program. Audits should verify that:
(i) The places of production in the program are free of quarantine
pests;
(ii) Program participants are complying with the specified
standards;
(iii) The integrated pest management measures continue to meet
APHIS requirements; and
(iv) Arrangements with designees are complied with.
(f) Noncompliance. (1) The exporting NPPO must notify APHIS of
noncompliance within the integrity of the system or noncompliance by a
place of production that affects the phytosanitary integrity of the
commodity. The requirements for notification will be determined between
the NPPO of the exporting country and APHIS.
(2) Regulatory responses to program failures will be based on
existing bilateral agreements. Contingency plans may be established in
advance to ensure that alternative measures are available in the event
that all or part of a program fails. APHIS will specify the
consequences of noncompliance to the NPPO of the exporting country. The
NPPO must specify the consequences of noncompliance to the participants
in the program. These may vary depending on the nature and severity of
the infraction. In addition, remedial measures should be specified to
enable a suspended or decertified place of production or plant broker
to become eligible for reinstatement or recertification.
[[Page 24661]]
(3) Places of production or plant brokers that do not meet the
conditions of the program must be suspended. Plants for planting must
not be exported from a place of production or a plant broker that has
failed to meet the program requirements.
(4) The effectiveness of remedial measures taken must be verified
before reinstatement to the program by the exporting NPPO and, where
appropriate, by APHIS.
Sec. 319.37-22 Trust fund agreements.
If APHIS personnel need to be physically present in an exporting
country or region to facilitate the exportation of plants for planting
and APHIS services are to be funded by the NPPO of the exporting
country or a private export group, then the NPPO or the private export
group must enter into a trust fund agreement with APHIS that is in
effect at the time APHIS' services are needed. Under the agreement, the
NPPO of the exporting country or the private export group must pay in
advance all estimated costs that APHIS expects to incur in providing
inspection services in the exporting country. These costs will include
administrative expenses incurred in conducting the services and all
salaries (including overtime and the Federal share of employee
benefits), travel expenses (including per diem expenses), and other
incidental expenses incurred by the inspectors in performing services.
The agreement must require the NPPO of the exporting country or region
or a private export group to deposit a certified or cashier's check
with APHIS for the amount of those costs, as estimated by APHIS. The
agreement must further specify that, if the deposit is not sufficient
to meet all costs incurred by APHIS, the NPPO of the exporting country
or a private export group must deposit with APHIS, before the services
will be completed, a certified or cashier's check for the amount of the
remaining costs, as determined by APHIS. After a final audit at the
conclusion of each shipping season, any overpayment of funds would be
returned to the NPPO of the exporting country or region or a private
export group, or held on account.
Sec. 319.37-23 Postentry quarantine.
(a) Postentry quarantine. One specific restriction that may be
placed upon the importation of a type of plants for planting in
accordance with Sec. 319.37-20 is that it be grown in postentry
quarantine. A list of taxa required to be imported into postentry
quarantine may be found in the Plants for Planting Manual. Plants for
planting grown in postentry quarantine must be grown under postentry
quarantine conditions specified in paragraphs (c) and (d) of this
section, and may be imported or offered for importation into the United
States only:
(1) If destined for a State that has completed a State postentry
quarantine agreement with APHIS in accordance with paragraph (b) of
this section;
(2) If an importer postentry quarantine growing agreement has been
completed and submitted to Plant Protection and Quarantine in
accordance with paragraph (c) of this section. The agreement must be
signed by the person (the importer) applying for a written permit for
importation of the plants for planting in accordance with Sec. 319.37-
5; and,
(3) If Plant Protection and Quarantine has determined that the
completed postentry quarantine growing agreement fulfills the
applicable requirements of this section and that services by State
inspectors are available to monitor and enforce the postentry
quarantine.
(b) State postentry quarantine agreement. Plants for planting
required to undergo postentry quarantine in accordance with Sec.
319.37-20 may only be imported if destined for postentry quarantine
growing in a State which has entered into a written agreement with the
Animal and Plant Health Inspection Service, signed by the Administrator
or his or her designee and by the State Plant Regulatory Official. In
accordance with the laws of individual States, inspection and other
postentry quarantine services provided by a State may be subject to
charges imposed by the State. A list of States that have entered into a
postentry quarantine agreement in accordance with this paragraph can be
found in the Plants for Planting Manual.
(c) Importer postentry quarantine growing agreements. Any plants
for planting required to be grown under postentry quarantine
conditions, as well as any increase therefrom, shall be grown in
accordance with an importer postentry quarantine growing agreement
signed by the person (the importer) applying for a written permit in
accordance with Sec. 319.37-5 for importation of the plants for
planting and submitted to Plant Protection and Quarantine. On each
importer postentry quarantine growing agreement, the person shall also
obtain the signature of the State Plant Regulatory Official for the
State in which plants for planting covered by the agreement will be
grown. The importer postentry quarantine growing agreement shall
specify the kind, number, and origin of plants to be imported; the
conditions specified in the Plants for Planting Manual under which the
plants for planting will be grown, maintained, and labeled; and the
reporting requirements in the case of abnormal or dead plants for
planting. The agreement shall certify to APHIS and to the State in
which the plants for planting are grown that the signer of the
agreement will comply with the conditions of the agreement for the
postentry quarantine growing period prescribed for the type of plants
for planting in the Plants for Planting Manual.
(d) Applications for permits. A completed importer postentry
quarantine agreement shall accompany the application for a written
permit for plants for planting required to be grown under postentry
quarantine conditions. Importer postentry quarantine agreement forms
are available without charge from the Animal and Plant Health
Inspection Service, Plant Protection and Quarantine, Permit Unit, 4700
River Road Unit 136, Riverdale, MD 20737-1236 or on the Internet at
http://www.aphis.usda.gov/permits/ppq_epermits.shtml.
(e) Inspector-ordered disposal, movement, or safeguarding of plants
for planting; costs and charges, civil and criminal liabilities--(1)
Growing at unauthorized sites. If an inspector determines that any
plants for planting subject to the postentry quarantine growing
requirements of this section, or any increase therefrom, is being grown
at an unauthorized site, the inspector may file an emergency action
notification (PPQ form 523) with the owner of the plants for planting
or the person who owns or is in possession of the site on which the
plants for planting is being grown. The person named in the form 523
must, within the time specified in form 523, sign a postentry
quarantine growing agreement, destroy, ship to a point outside the
United States, move to an authorized postentry quarantine site, and/or
apply treatments or other safeguards to the plants for planting, the
increase therefrom, or any portion of the plants for planting or the
increase therefrom, as prescribed by an inspector to prevent the
introduction of quarantine pests into the United States. In choosing
which action to order and in setting the time limit for the action, the
inspector shall consider the degree of pest risk presented by the
quarantine pests associated with the type of plants for planting
(including increase therefrom), the types of other host materials for
the pest in or near the growing site, the climate and season at the
site in relation to the pest's survival, and the availability of
treatment facilities.
[[Page 24662]]
(2) Growing at authorized sites. If an inspector determines that
any plants for planting, or any increase therefrom, grown at a site
specified in an authorized postentry quarantine growing agreement is
being grown contrary to the provisions of this section, including in
numbers greater than the number approved by the postentry quarantine
growing agreement, or in a manner that otherwise presents a risk of
introducing quarantine pests into the United States, the inspector
shall issue an emergency action notification (PPQ form 523) to the
person who signed the postentry quarantine growing agreement. That
person shall be responsible for carrying out all actions specified in
the emergency action notification. The emergency action notification
may extend the time for which the plants for planting and the increase
therefrom must be grown under the postentry quarantine conditions
specified in the authorized postentry quarantine growing agreement, or
may require that the person named in the notification must destroy,
ship to a point outside the United States, or apply treatments or other
safeguards to the plants for planting, the increase therefrom, or any
portion of the plants for planting or the increase therefrom, within
the time specified in the emergency action notification. In choosing
which action to order and in setting the time limit for the action, the
inspector shall consider the degree of pest risk presented by the
quarantine pests associated with the type of plants for planting
(including increase therefrom), the types of other host materials for
the pest in or near the growing site, the climate and season at the
site in relation to the pest's survival, and the availability of
treatment facilities.
(3) Costs and charges. All costs pursuant to any action ordered by
an inspector in accordance with this section shall be borne by the
person who signed the postentry quarantine growing agreement covering
the site where the plants for planting were grown, or if no such
agreement was signed, by the owner of the plants for planting at the
growing site.
Sec. 319.40-2 [Amended]
0
8. In Sec. 319.40-2, paragraph (c) is amended by removing the words
``Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant
Products'' and adding the words ``Plants for Planting'' in their place.
0
9. Section 319.41 is amended as follows:
0
a. By redesignating paragraph (d) as paragraph (e).
0
b. By adding a new paragraph (d) to read as set forth below.
Sec. 319.41 Notice of quarantine.
* * * * *
(d) The importation of plants (including any plant parts) of any of
the taxa listed in paragraph (b) of this section that are for planting
or capable of being planted is restricted under ``Subpart--Plants for
Planting'' of this part.
* * * * *
0
10. Section 319.55 is amended as follows:
0
a. By revising paragraphs (a) and (b) to read as set forth below.
0
b. By redesignating paragraph (d) as paragraph (e).
0
c. By adding a new paragraph (d) to read as set forth below.
Sec. 319.55 Notice of quarantine.
(a) The fact has been determined by the Secretary of Agriculture,
and notice is hereby given:
(1) That injurious fungous diseases of rice, including downy,
mildew (Sclerospora macrospora), leaf smut (Entyloma oryzae), blight
(Oospora oryzetorum), and glume blotch (Melanomma glumarum), as well as
dangerous insect pests, new to and not heretofore widely prevalent or
distributed within and throughout the United States, exist, as to one
or more of such diseases and pests, in Europe, Asia, Africa, Central
America, South America, and other foreign countries and localities, and
may be introduced into this country through importations of rice straw
and rice hulls; and
(2) That the unrestricted importation of rice straw and rice hulls
may result in the entry into the United States of the injurious plant
diseases heretofore enumerated, as well as insect pests.
(b) To prevent the introduction into the United States of the plant
pests and diseases indicated above, the Secretary has determined that
it is necessary to restrict the importation of rice straw and rice
hulls from all foreign locations, except as otherwise provided in this
subpart.
* * * * *
(d) The importation of seed or paddy rice is restricted under
``Subpart--Plants for Planting'' of this part.
* * * * *
Sec. 319.55-2 [Amended]
0
11. Section 319.55-2 is amended as follows:
0
a. In paragraph (a), by removing the words ``seed or paddy rice from
Mexico or'' and the words ``from any country,''.
0
b. In paragraph (c), by removing the word ``mader'' and adding the word
``made'' in its place.
Sec. 319.55-3 [Amended]
0
12. Section 319.55-3 is amended as follows:
0
a. By removing paragraph (a) and redesignating paragraphs (b), (c), and
(d) as paragraphs (a), (b), and (c), respectively.
0
b. In newly redesignated paragraph (a), by removing the words ``from
all foreign countries''.
0
c. In newly redesignated paragraph (b), by removing the words ``seed or
paddy rice,'' and by removing the comma after the word ``straw''.
Sec. 319.55-6 [Amended]
0
13. Section 319.55-6 is amended as follows:
0
a. By removing and reserving paragraph (a).
0
b. By redesignating paragraphs (c)(1) and (c)(2) as paragraphs (b)(3)
and (b)(4).
0
c. By removing the designation and heading of paragraph (c).
Sec. 319.55-7 [Amended]
0
14. Section 319.55-7 is amended by removing the words ``seed and paddy
rice from Mexico, and of'' and the words ``from all foreign countries
and localities,''.
Sec. 319.59-1 [Amended]
0
15. In Sec. 319.59-1, the definition of grain is amended by adding the
words ``and not for planting'' before the period.
0
16. Section 319.59-2 is amended as follows:
0
a. By removing and reserving paragraph (a).
0
b. In paragraph (b), by removing the words ``Triticum spp. plants,
articles'' and adding the word ``Articles'' in their place.
0
c. By adding a new paragraph (c) to read as set forth below.
Sec. 319.59-2 General import prohibitions; exceptions.
* * * * *
(c) The importation of any host crops (including seed and any other
plant parts) that are for planting or capable of being planted is
restricted under ``Subpart--Plants for Planting'' of this part.
0
17. Section 319.59-3 is amended by revising paragraph (a) to read as
follows:
Sec. 319.59-3 Articles prohibited importation pending risk
evaluation.
* * * * *
(a) The following articles of Triticum spp. (wheat) or of Aegilops
spp. (barb goatgrass, goatgrass): Straw (other than straw, with or
without heads, which has
[[Page 24663]]
been processed or manufactured for use indoors, such as for decorative
purposes or for use in toys); chaff; and products of the milling
process (i.e., bran, shorts, thistle sharps, and pollards) other than
flour.
* * * * *
Sec. 319.59-4 [Amended]
0
18. In Sec. 319.59-4, paragraph (a)(2) is amended by removing the word
``seed,''.
Sec. 319.73-1 [Amended]
0
19. In Sec. 319.73-1, the definition of unroasted coffee is amended by
adding the words ``intended for processing'' before the period.
0
20. Section 319.73-2 is amended by revising paragraphs (a)(2) and (b)
to read as follows:
Sec. 319.73-2 Products prohibited importation.
(a) * * *
(2) Coffee leaves; and
* * * * *
(b) The importation of any coffee plants (including bare seeds,
seeds in pulp, and any other plant parts) that are for planting or
capable of being planted is restricted under ``Subpart--Plants for
Planting'' of this part.
Sec. 319.74-1 [Amended]
0
21. In Sec. 319.74-1, the definition of cut flower is amended by
adding the words ``and not for planting'' after the word ``state''.
Sec. 319.75-1 [Amended]
0
22. Section 319.75-1 is amended by removing the definition of nursery
stock.
0
23. Section 319.75-2 is amended by revising footnote 1 to read as set
forth below.
Sec. 319.75-2 Restricted articles.\1\
* * * * *
\1\ The importation of restricted articles may be subject to
prohibitions or restrictions under other provisions of 7 CFR part
319. For example, fresh whole chilies (Capsicum spp.) and fresh
whole red peppers (Capsicum spp.) from Pakistan are prohibited from
being imported into the United States under the provisions of
Subpart--Fruits and Vegetables of this part, and the importation of
any restricted articles that are for planting or capable of being
planted is restricted under Subpart--Plants for Planting of this
part.
Sec. 319.75-9 [Amended]
0
24. In Sec. 319.75-9, paragraphs (a), (b), and (c) are amended by
removing the words ``nursery stock, plant,'' and the words ``root,
bulb,'' each time they occur.
Sec. 319.77-2 [Amended]
0
25. Section 319.77-2 is amended as follows:
0
a. In the introductory text of the section, by removing the words
``through (g)'' and adding the words ``through (e)'' in their place.
0
b. By removing paragraphs (b) and (c) and redesignating paragraphs (d)
through (h) as (b) through (f), respectively.
0
26. Section 319.77-4 is amended as follows:
0
a. By revising footnote 1 to read as set forth below.
0
b. In paragraphs (a)(1) and (a)(2), by removing the words ``, trees
with roots, and shrubs with roots and persistent woody stems'' each
time they occur.
0
c. In paragraphs (a)(2)(i) and (a)(2)(ii), by removing the words ``or
shrubs'' each time they occur.
Sec. 319.77-4 Conditions for the importation of regulated articles.
(a) * * *\1\
* * * * *
\1\ Trees and shrubs from Canada may be subject to additional
restrictions under ``Subpart--Logs, Lumber, and Other Unmanufactured
Wood Articles'' (Sec. Sec. 319.40-1 through 310.40-11 of this part).
PART 340--INTRODUCTION OF ORGANISMS AND PRODUCTS ALTERED OR
PRODUCED THROUGH GENETIC ENGINEERING WHICH ARE PLANT PESTS OR WHICH
THERE IS REASON TO BELIEVE ARE PLANT PESTS
0
27. The authority citation for part 340 continues to read as follows:
Authority: 7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7
CFR 2.22, 2.80, and 371.3.
Sec. 340.0 [Amended]
0
28. In Sec. 340.0, footnote 1 is amended as follows:
0
a. By removing the words ``Nursery Stock, Plants, Roots, Bulbs, Seeds,
and Other Plant Products'' and adding the words ``Plants for Planting''
in their place.
0
b. By removing the words ``nursery stock'' both times they appear and
adding the words ``plants for planting'' in their place.
0
c. By removing the words ``stock is'' and adding the words ``plants
are'' in their place.
Done in Washington, DC, this 18th day of April 2013.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-09737 Filed 4-24-13; 8:45 am]
BILLING CODE 3410-34-P