[Federal Register Volume 69, Number 83 (Thursday, April 29, 2004)]
[Proposed Rules]
[Pages 23451-23456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9716]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 69, No. 83 / Thursday, April 29, 2004 / 
Proposed Rules  

[[Page 23451]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-119-1]
RIN 0579-AB78


Importation of Small Lots of Seed Without Phytosanitary 
Certificates

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: We are proposing to amend the nursery stock regulations to 
allow the importation of small lots of seed under an import permit with 
specific conditions, as an alternative to the current phytosanitary 
certificate requirement. This proposed change is necessary because 
several entities that import small lots of seed-individual importers, 
horticultural societies, arboreta, and small businesses--have had 
difficulty obtaining the necessary certificates and have been adversely 
affected by the phytosanitary certificate requirement. The proposed 
change would make it feasible for those entities to import small lots 
of seed and would ensure prompt and consistent service for such 
importers while continuing to protect against the introduction of plant 
pests into the United States and providing the Animal and Plant Health 
Inspection Service with necessary information about the quality, 
quantity, and diversity of the imported material.

DATES: We will consider all comments that we receive on or before June 
28, 2004.

ADDRESSES: You may submit comments by any of the following methods:
     Postal Mail/Commercial Delivery: Please send 
four copies of your comment (an original and three copies) to Docket 
No. 02-119-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 02-119-1.
     E-mail: Address your comment to 
[email protected]. Your comment must be contained in the body 
of your message; do not send attached files. Please include your name 
and address in your message and ``Docket No. 02-119-1'' on the subject 
line.
     Agency Web Site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to 
submit an e-mail comment through the APHIS Web site.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Arnold Tschanz, Senior Staff 
Officer, Regulatory Coordination Staff, PPQ, APHIS, 4700 River Road 
Unit 141, Riverdale, MD 20737-1236, (301) 734-5306.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation into the United States of certain plants and plant products 
to prevent the introduction of plant pests into the United States. The 
regulations contained in ``Subpart--Nursery Stock, Plants, Roots, 
Bulbs, Seeds, and Other Plant Products'' (Sec. Sec.  319.37 through 
319.37-14, referred to below as the regulations) prohibit or restrict, 
among other things, the importation of living plants, plant parts, and 
seeds for propagation.
    Nursery stock, plants, seeds, and other propagative plant material 
that cannot be feasibly inspected, treated, or handled to prevent them 
from introducing plant pests new to or not widely distributed in the 
United States are listed in the regulations as prohibited articles. 
Prohibited articles may not be imported into the United States, unless 
imported by the U.S. Department of Agriculture (USDA) for experimental 
or scientific purposes under specified safeguards.
    All other nursery stock, plants, seeds, and other propagative plant 
material that can be inspected, treated, or handled to prevent them 
from introducing plant pests are considered restricted articles. 
Restricted articles may be imported into the United States if they are 
imported in compliance with conditions that include a phytosanitary 
certificate and port of entry inspection requirement and that may 
include the need for a permit, treatment, or postentry quarantine.
    Paragraph (a) of Sec.  319.37-4 of the regulations requires that 
any restricted article offered for importation into the United States, 
other than certain greenhouse-grown plants from Canada, be accompanied 
by a phytosanitary certificate of inspection (phytosanitary 
certificate). Section 319.37-1 of the regulations defines a 
phytosanitary certificate as a document relating to a restricted 
article, which: (1) Is issued by a plant protection official of the 
country in which the restricted article was grown; (2) is issued not 
more than 15 days prior to shipment of the restricted article from the 
country in which grown; (3) is addressed to the plant protection 
service of the United States (i.e., the Plant Protection and Quarantine 
program [PPQ] of the Animal and Plant Health Inspection Service 
[APHIS]); (4) contains a description of the restricted article intended 
to be imported into the United States; (5) certifies that the article 
has been thoroughly inspected, is believed to be free from injurious 
plant diseases, injurious insect pests, and other plant pests, and is 
otherwise believed to be eligible for importation pursuant to the 
current phytosanitary laws and regulations of the United States; and 
(6) contains any specific additional declarations required under the 
regulations.

[[Page 23452]]

    A phytosanitary certificate documents the origin of the shipment 
and ensures inspection in the country of origin by a member of that 
country's national plant protection organization, thus helping to 
ensure the shipment of commodities free of plant pests or noxious 
weeds. Principles and guidelines for the preparation and issuance of 
phytosanitary certificates have been established under the 
International Plant Protection Convention (IPPC), which is acknowledged 
by the World Trade Organization in the Agreement on the Application of 
Sanitary and Phytosanitary Measures as the international standard-
setting organization for phytosanitary measures affecting trade.
    Phytosanitary certificates are recognized as an internationally 
accepted form of pest risk mitigation. Pest risk mitigation at the 
place of origin is often viewed as the most viable means of preventing 
the introduction of plant pests. Signatories to the IPPC, which include 
the United States and over 100 other countries, agree that pest risk 
mitigation is a responsibility of the exporting country, and that they 
are willing and able to issue phytosanitary certificates.
    Prior to January 2002, APHIS had not consistently and routinely 
enforced the phytosanitary certificate requirement in Sec.  319.37-4 in 
all instances involving the importation of restricted articles under 
the regulations. Our policy had been not to reject a shipment based 
solely on the lack of a phytosanitary certificate. We enforced the 
requirement that a phytosanitary certificate accompany shipments of 
restricted articles in those situations where our regulations require 
that the phytosanitary certificate include an additional declaration, 
proof of treatment, or both. In other cases, our policy had provided 
APHIS inspectors the latitude to allow entry of the shipment, even 
though it was not accompanied by a phytosanitary certificate.
    In light of increased quantities, types, and sources of nursery 
stock, plants, and other propagative plant material offered for 
importation into the United States, coupled with the findings of a 1999 
safeguarding report,\1\ we reevaluated our policy regarding the 
enforcement of the phytosanitary certificate requirement in Sec.  
319.37-4(a). We decided that it was necessary for us to enforce the 
phytosanitary certificate requirement on a consistent, mandatory basis 
with respect to all restricted articles offered for importation into 
the United States in order to effectively mitigate the risk of those 
articles introducing foreign plant pests into the United States.
---------------------------------------------------------------------------

    \1\ The safeguarding report, entitled ``Safeguarding American 
Plant Resources, A Stakeholder Review of the APHIS-PPQ Safeguarding 
System,'' was prepared by the National Plant Board at APHIS's 
request and can be viewed on the Internet at http://www.aphis.usda.gov/ppq/safeguarding. The report advocates greater 
use of offshore mitigating measures such as phytosanitary 
certificates.
---------------------------------------------------------------------------

    On July 23, 2001, we published in the Federal Register (66 FR 
38137-38139, Docket No. 00-119-1) a policy statement advising the 
public of our decision to begin enforcing, on a consistent basis, the 
existing requirement in Sec.  319.37-4(a) of the regulations that a 
phytosanitary certificate of inspection accompany restricted articles, 
other than certain greenhouse-grown plants from Canada, that are 
offered for importation into the United States under the regulations. 
We notified the public that we intended to begin routinely enforcing 
this requirement effective September 21, 2001.
    On August 31, 2001, we published in the Federal Register (66 FR 
45921, Docket No. 00-119-2) a notice advising the public of our 
decision to delay by 120 days the effective date of that policy 
statement. This delay, which had been requested by several parties, 
moved the effective date to January 22, 2002, thus allowing additional 
time for affected parties to make preparations to comply with the 
requirement.
    Although the majority of the entities who import large shipments of 
plants and seeds were not affected by the more consistent, mandatory 
enforcement of the phytosanitary certificate requirement, some smaller 
entities have been adversely affected by the enforcement of this 
requirement. Several horticultural societies, individual importers, and 
small entities specializing in foreign plants have written to APHIS 
expressing their concerns and outlining their difficulties in complying 
with the regulations. Many horticultural societies import seeds of 
various genera from several different seed donors in consolidated 
shipments, which are then distributed among their members. In order to 
comply with the phytosanitary certificate requirement, each separate 
packet of seeds from each genus and from each donor within the 
consolidated shipment would be required to be inspected and certified. 
Typically, the certifying country charges a fee for these services, 
which varies from country to country. In many cases, these importers 
and exporters have been unable to obtain the necessary phytosanitary 
certificates because the official plant protection agency of the 
exporting country did not offer inspection services, or phytosanitary 
certificates, for small shipments of seed because the time required to 
complete the inspection would have made the process cost-inefficient. 
In cases where inspection services and phytosanitary certificates were 
available for small lots of seed, the costs of the inspection and the 
certificate, which vary by country but can be as much as $100 or more, 
were prohibitive and often equal to several times the value of the 
commodity itself.

Permits

    Since obtaining a phytosanitary certificate is not feasible in many 
cases for those entities interested in importing small lots of seed, 
which would consist of a maximum of 50 seeds of 1 taxon and a maximum 
of 50 seed packets per shipment, we are proposing to allow the 
importation of small lots of seed using a permit rather than a 
phytosanitary certificate. Paragraph (b) of Sec.  319.37-3 of the 
regulations describes the information that is required on applications 
for permits to import certain restricted articles, which would include 
small lots of seed. The completed permit application must contain the 
following information: (1) Name, address, and telephone number of the 
importer; (2) approximate quantity and kinds (botanical designations) 
of articles intended to be imported; (3) country or locality where 
grown; (4) intended U.S. port of entry; (5) means of transportation, 
e.g., mail, airmail, express, air express, freight, airfreight, or 
baggage; and (6) expected date of arrival. The PPQ program of APHIS 
will review the application and will then decide whether to issue a 
permit and the applicable conditions for importation. Permits would be 
issued at the discretion of APHIS only to residents of the United 
States, whether an individual or an organization.
    Although some importers occasionally hand carry various commodities 
into the United States in baggage (``baggage'' is one of the means of 
transportation cited in item (5) in the previous paragraph), this 
practice is discouraged by APHIS-PPQ. In the case of small lots of 
seed, this practice would not be an option because of the additional 
requirement that the shipments must be inspected at a PPQ plant 
inspection station in accordance with proposed Sec.  319.37-4(d)(3). 
Permits will be denied to anyone indicating that ``baggage'' will be 
the means of transportation for importing the commodity.
    As with permits for other plant material that is imported into the 
United

[[Page 23453]]

States, the permit for the small lots of seed would be sent to the 
importer along with written instructions, a copy of the import 
requirements, and a standard green and yellow shipping label. The 
instructions would direct the importer to have the seed sent to a PPQ 
plant inspection station at a port of entry for quarantine inspection 
and clearance. The address of the appropriate plant inspection station 
would appear on the standard green and yellow permit shipping label. 
The importer would be directed to send the green and yellow shipping 
label and copies of the permit and import requirements to the overseas 
seed supplier. The supplier would have to attach the green and yellow 
shipping label, clearly visible and unobstructed by other shipping 
labels, to the outside of the shipping container. The supplier would 
have to enclose an invoice and a copy of the permit in the shipping 
container. The supplier would be responsible for ensuring that the seed 
meets the import conditions specified in the permit.
    The seed would be inspected after arrival at the plant inspection 
station to ensure that the shipment meets the conditions of the permit 
and import requirements. If the seed passes inspection, the shipment 
would be forwarded to the importer. If the seed shipment did not pass 
inspection, the importer would be notified and given the option to 
treat the shipment, if possible; to have the shipment destroyed; or to 
return the shipment to the supplier. The importer would be responsible 
for shipping costs (which are discussed under the heading ``Executive 
Order 12866 and Regulatory Flexibility Act'' later in this document) to 
forward the shipment and would be responsible for the shipping costs of 
returning the shipment to the supplier. However, there would be no cost 
to the importer to have the shipment destroyed. Treatment would be 
offered at no cost to the importer unless the shipments were not 
treated during normal duty hours or the treatments were conducted by 
private contractors. Private contractors are sometimes used for 
fumigation treatments of shipments that come into western ports that do 
not have fumigation chambers at the ports themselves.

Permit Requirements

    In order to provide a level of protection equivalent to that 
provided by the phytosanitary certificate against the introduction or 
dissemination of plant pests through the importation of seeds, we are 
proposing several additional requirements that would have to be met in 
order for shipments of small lots of seed to qualify for importation 
under a permit. These additional requirements, which we would include 
as permit conditions, would be as follows: (1) Each seed packet would 
have to be 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; (2) there could be a maximum of 50 
seeds of 1 taxon (taxonomic category such as genus, species, cultivar, 
etc.) per packet; (3) there could be a maximum of 50 seed packets per 
shipment; (4) the seeds would have to be free from pesticides; (5) the 
seed packets would have to be in gas permeable packages; (6) the 
shipment would have to be 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, or mites; and (7) at the time of importation, the shipment 
would have to be sent to either the Plant Germplasm Quarantine Center 
in Beltsville, MD, or a port of entry listed in Sec.  319.37-14(b) and 
designated by an asterisk. These additional requirements would be 
necessary in order to address the safety issues that are usually 
covered by the phytosanitary certificate.
    Upon review of the permit application, additional specific permit 
conditions, besides the ones listed above, may be required by PPQ in 
order to prevent the introduction into the United States of a plant 
pest or noxious weed. As stated previously, the permits would direct 
that the packages be sent to a plant inspection station for inspection 
to ensure that the seeds meet all of the additional conditions.
    These proposed provisions for the importation of small lots of seed 
without a phytosanitary certificate apply only to seeds that are 
already enterable under the current regulations. Permits in lieu of 
phytosanitary certificates would only be available for seeds that:
     Are not of any prohibited genera as listed in 
Sec.  319.37-2 of the regulations. Seeds from genera that are listed in 
the regulations as prohibited articles would not be affected by the 
proposed provisions or be allowed entry into the United States. A list 
of prohibited genera will accompany the permit.
     Are not of any noxious weed species listed in 7 
CFR part 360. Seeds of any Federal noxious weeds species would continue 
to be regulated under 7 CFR part 360 and would not be affected by the 
proposed provisions. (The list of noxious weeds can be found in 7 CFR 
360.200 or on the Internet at http://www.aphis.usda.gov/ppq/permits. 
Click on the Noxious Weeds link and then click on the link for the 
Federal Noxious Weed List.)
     Do not require an additional declaration on a 
phytosanitary certificate in accordance with Sec.  319.37-5 of the 
regulations. The regulations in Sec.  319.37-5 require seeds and other 
restricted articles of specified genera from the listed countries to be 
accompanied by a phytosanitary certificate of inspection that contains 
an accurate additional declaration that the article meets certain 
additional inspection and certification requirements. Any seeds that 
require an additional declaration on a phytosanitary certificate in 
accordance with these regulations would not be affected by the proposed 
provisions.
     Do not require treatment in accordance with 
Sec.  319.37-6 of the regulations. Section 319.37-6 of the regulations 
lists specific treatments for seeds of several different genera. Any 
seeds that require specific treatment in accordance with these 
regulations would not be affected by the proposed provisions.
     Are eligible for importation under the 
regulations in 7 CFR parts 330 and 361. Part 330 restricts the 
interstate movement of plant pests and means of conveyance and certain 
other articles to prevent the dissemination of plant pests into the 
United States. Part 361 provides certain labeling and other 
requirements for the importation of agricultural or vegetable seeds to 
prevent the dissemination of noxious weeds into the United States.

Request for Suggestions

    The changes proposed in this document are necessary to meet the 
needs of individuals and small entities who wish to import small lots 
of seed. There has been some concern that large, commercial entities 
might use these provisions as a means to avoid paying the costs related 
to phytosanitary certification by dividing their large shipments into 
numerous small lots and requesting permits for each lot. We encourage 
the submission of suggestions on specific factors we might consider in 
our reviews of permit applications in order to protect against any 
misuse of these provisions.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be significant for the purposes of 
Executive Order 12866 and, therefore, has been reviewed

[[Page 23454]]

by the Office of Management and Budget.
    In this document, we are proposing to amend the nursery stock 
regulations to allow the importation of small lots of seed under an 
import permit with specific conditions, as an alternative to the 
phytosanitary certificate requirement. This proposed change is 
necessary because several entities that import small lots of seed--
individual importers, horticultural societies, arboreta, and small 
businesses--have had difficulty obtaining the necessary certificates 
and have been adversely affected by the phytosanitary certificate 
requirement. The proposed change would make it feasible for those 
entities to import small lots of seed and would ensure prompt and 
consistent service for such importers while continuing to protect 
against the introduction of plant pests into the United States and 
providing APHIS with necessary information about the quality, quantity, 
and diversity of the imported material.
    For this proposed rule, we have prepared an economic analysis, 
which is set out below. The economic analysis provides a cost-benefit 
analysis as required by Executive Order 12866 and an analysis of the 
potential economic effects of this proposed rule on small entities as 
required by the Regulatory Flexibility Act.
    Seed production and trade play important roles in the U.S. economy. 
The total market value of seeds purchased by farmers in 2001 was about 
$7.6 billion, and cash receipts from these crops were valued at about 
$96 billion for the same year.\2\ The United States is a net exporter 
of seeds. During the 2001-2002 seed marketing year, which runs from 
July through June, the United States exported 1,963 million pounds of 
planting seeds, valued at approximately $823 million, and imported 653 
million pounds of seeds, valued at approximately $398 million.
---------------------------------------------------------------------------

    \2\ USDA/National Agricultural Statistics Service, Agricultural 
Statistics 2002, June 2002.
---------------------------------------------------------------------------

    Although U.S. exports of planting seeds are widely distributed 
among several different trading partners, there are 10 countries that 
together account for about 75 percent of the total U.S. seed exports 
(table 1). Imports of planting seed into the United States also come 
from several different countries. The top 10 suppliers together account 
for approximately 84 percent of the total U.S. imports of planting seed 
(table 1).

    Table 1.--U.S. Exports and Imports of Planting Seeds in 2001-2002
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                       U.S. exports (in million $)
------------------------------------------------------------------------
Mexico.........................................................    249.9
Canada.........................................................    125.6
Japan..........................................................     59.1
Italy..........................................................     40.6
France.........................................................     36.6
Netherlands....................................................     32.2
Spain..........................................................     24.2
China..........................................................     16.1
Korea..........................................................     15.4
Saudi Arabia...................................................     13.8
----------------------------------------------------------------
                       U.S. imports (in million $)
------------------------------------------------------------------------
Chile..........................................................    105.8
Mexico.........................................................    105
Netherlands....................................................     36.5
Argentina......................................................     21.2
China..........................................................     17.9
Japan..........................................................     14
Finland........................................................     11.1
Australia......................................................      8.3
Denmark........................................................      7.5
India..........................................................      7.1 
------------------------------------------------------------------------
 Source: USDA/Foreign Agricultural Service, Foreign Agricultural Trade
  of the United States, Revised March 2003; USDA/Foreign Agricultural
  Service, U.S. Planting Seed Trade Archives, August 2002.

    Many varieties of seed are traded between the United States and 
other countries. The major categories include grasses, other forages, 
pulses, vegetables, field crops, and miscellaneous varieties of plants 
(flowers, trees, and shrubs). Field crops are the largest category of 
seed exports and imports (table 2).

 Table 2.--Types and Values of Seed Traded Between the United States and
                            Trading Partners
------------------------------------------------------------------------
                                            Export  (in     Import  (in
              Type of seed                  million $)      million $)
------------------------------------------------------------------------
Field crops.............................             315             131
Vegetable...............................             251             104
Grasses.................................             103              35
Miscellaneous...........................              67              60
Forage..................................              49              21
Pulses..................................              40             49
------------------------------------------------------------------------
 Source: USDA/Foreign Agricultural Service, Foreign Agricultural Trade
  of the United States, Revised March 2003; USDA/Foreign Agricultural
  Service, U.S. Planting Seed Trade Archives, August 2002.

    The availability of seeds of good quality contributes to domestic 
production of food grains, field crops, cotton, oil crops, vegetables, 
herbs, flowers, trees, and shrubs. There are close to 900 seed 
companies in the United States that engage in certified seed trade 
(domestic and international). In addition, specialized groups such as 
horticultural societies, arboreta, and individual hobbyists collect, 
grow, exhibit, preserve, exchange, and donate specialty seeds and often 
import small lots of seed.
    As an alternative to the proposed changes, we considered 
maintaining the status quo. The current regulations require imported 
seeds to be inspected and to be accompanied by a phytosanitary 
certificate. Importers of large quantities of seed are readily able to 
obtain the required phytosanitary certificates. Because the time and 
effort involved in inspection and certification are not directly 
proportional to the volume of seeds, many of the exporting countries 
have been reluctant to invest the necessary resources to provide 
phytosanitary certificates and inspections for small lots of seed. In 
the countries that do offer inspection and certification services for 
small lots of seed, the costs of these services has been prohibitive 
for the seed importers. As a result, seed importers have either been 
unable to obtain the necessary phytosanitary certificates for small 
lots of seed or have had to pay fees that greatly exceeded the value of 
the seeds themselves. Therefore, maintaining the status quo would not 
be an

[[Page 23455]]

economically feasible option for importers of small lots of seed.

Costs and Benefits

    The proposed changes might result in a slight cost increase for the 
Federal Government since import permits and the port of entry 
inspection activities are currently provided without a fee. If the 
proposed changes result in increased importation of small lots of seed, 
there could also be a slight increase in the workload for processing 
the permits but, since imports of small lots of seed are a very small 
fraction of the total domestic supply of seeds, no significant change 
in supply or price is expected.
    The proposed changes are expected to generate several benefits 
without increasing costs for affected private entities. Plant 
specialists, gardeners, arboreta, and horticultural societies would be 
able to more widely acquire new kinds of seeds to expand plant 
diversity, such as plant species that are drought-or disease-resistant 
or other unique types of plants. Private gardeners would benefit from 
an increased availability of special seeds. Also, the entry of imported 
seeds through plant inspection stations would provide APHIS with a more 
accurate picture of seed import activity, using data generated from 
permit issuance and the actual importation data from U.S. ports of 
entry. Finally, the risk of the introduction or dissemination of plant 
diseases would be reduced, if seeds that are currently being imported 
illegally because of the costs and other difficulties associated with 
obtaining a phytosanitary certificate would be eligible for legal 
importation and subject to inspection under a permit. Compared to the 
costs associated with obtaining a phytosanitary certificate, shipping 
costs, which will be discussed in the following paragraphs, should not 
be a burden on importers of small lots of seed and should not be 
appreciably more than shipping costs importers must already pay in 
order to import seeds from overseas suppliers.

Shipping Costs

    As discussed earlier, the importer would be responsible for 
transportation costs from the overseas seed supplier to the PPQ plant 
inspection station and the costs of shipping the seed from the plant 
inspection station to the importer's address. APHIS-PPQ has estimated 
shipping costs for importers of small lots of seed using a worst case 
scenario of a shipment of 50 packets of 50 corn seeds per packet (the 
maximum shipment size that would be allowed under the proposed 
provisions), which would weigh less than 2 pounds. Currently, this 
shipment would cost $4.49 for parcel post and $5.75 for priority mail 
to ship the seeds from the inspection station at Beltsville, MD, to the 
farthest destination within the United States. Corn seed was used in 
this example because it is considerably heavier than most ornamental 
seed, which is the type expected to be shipped. Shipping costs for 
smaller, lightweight seeds would be much less than those in the 
example.
    Currently, importers who import commodities that require 
inspection, such as would be the case with small lots of seed, cover 
the costs of shipping the commodity from the plant inspection station 
to the importer's address, using one of two options: (1) Provide a 
shipping container and the estimated amount of postage necessary to the 
overseas supplier who would then send it along with the shipment to the 
plant inspection station, or (2) provide an account number for the 
United States Postal Service or for a commercial shipping service to be 
charged by the inspectors at the plant inspection station.
    In general, the shipping costs incurred by importers of small lots 
of seed as a result of these proposed changes would be much less than 
the costs of obtaining a phytosanitary certificate as required under 
the current regulations, which, as noted previously, vary by country 
but can be as much as $100 or more and can be equal to several times 
the value of the commodity itself. These proposed changes are expected 
to decrease the current economic burden on importers of small lots of 
seed.

Impact on Small Entities

    The Small Business Administration (SBA) has established size 
standards based on the North American Industry Classification System 
(NAICS) to determine and to classify which economic entities can be 
considered small entities. The SBA classifies seed companies (NAICS 
422910) \3\ as small if they employ 100 or fewer workers. There are 
close to 900 seed companies that are involved in certified seed trade 
(domestic and international) in the United States. About 97 percent of 
these companies would be considered small by SBA standards. In 
addition, groups such as horticultural societies, arboreta, and 
individual hobbyists collect, grow, exhibit, preserve, exchange, 
donate, and import small lots of seeds. The size of these entities is 
difficult to determine, and the exact number of seed importers is not 
known. The proposed rule would primarily affect those entities who 
import small lots of seed. Based on information that we have received 
from several horticultural societies and from various individuals and 
small businesses that currently import small lots of seed, we expect 
approximately 2,000 import permit applications over the first 5 years, 
so approximately 400 import permit applications are expected per year.
---------------------------------------------------------------------------

    \3\ U.S. Census Bureau, 1997 Economic Census, Wholesale Trade-
Subject Series, August 2000.
---------------------------------------------------------------------------

    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

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.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 02-119-1. 
Please send a copy of your comments to: (1) Docket No. 02-119-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    The changes proposed in this document would allow the importation 
of small lots of seed under an import permit with specific conditions, 
as an alternative to requiring a phytosanitary certificate. 
Implementation of this proposed rule would require us to engage in 
certain information collection activities, in that entities wishing to 
import small lots of seed would be required to apply for a permit and 
to provide certain information. We are soliciting comments from the 
public (as

[[Page 23456]]

well as affected agencies) concerning our proposed information 
collection and recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.16 hours per response.
    Respondents: Importers, horticultural societies, arboreta, and 
small businesses.
    Estimated annual number of respondents: 400.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 400.
    Estimated total annual burden on respondents: 64 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

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

    Accordingly, 7 CFR part 319 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue to read as 
follows:

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

    2. Section 319.37-3 would be amended as follows:
    a. In paragraph (a)(15), by removing the word ``and'' at the end of 
the paragraph.
    b. In paragraph (a)(16), by removing the period at the end of the 
paragraph and adding a semicolon in its place.
    c. In paragraph (a)(17), by removing the period at the end of the 
paragraph and adding the word ``; and'' in its place.
    d. By adding a new paragraph (a)(18) to read as set forth below.


Sec.  319.37-3  Permits.

    (a) * * *
    (18) Small lots of seed imported in accordance with Sec.  319.37-
4(d) of this subpart.
* * * * *
    3. Section 319.37-4 would be amended as follows:
    a. In paragraph (a), by removing the word ``Any'' and adding the 
words ``Except for small lots of seed imported in accordance with 
paragraph (d) of this section, any'' in its place.
    b. By adding a new paragraph (d) to read as set forth below.


Sec.  319.37-4  Inspection, treatment, and phytosanitary certificates 
of inspection.

* * * * *
    (d) 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.  319.37-3.
    (2) The seed is not of any prohibited genera listed in Sec.  
319.37-2; is not of any noxious weed species listed in part 360 of this 
chapter; does not require an additional declaration on a phytosanitary 
certificate in accordance with Sec.  319.37-5; does not require 
treatment in accordance with Sec.  319.37-6; and is eligible for 
importation under the regulations listed in parts 330 and 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;
    (iii) There are a maximum of 50 seed packets per shipment;
    (iv) The seeds are free from pesticides;
    (v) The seed packets are in gas permeable packages;
    (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 port of 
entry listed in Sec.  319.37-14(b) and designated by an asterisk.

    Done in Washington, DC, this 23rd day of April, 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-9716 Filed 4-28-04; 8:45 am]
BILLING CODE 3410-34-P