[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Proposed Rules]
[Pages 16711-16716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4840]


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 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. 71, No. 64 / Tuesday, April 4, 2006 / 
Proposed Rules  

[[Page 16711]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2005-0103]
RIN 0579-AB98


Special Need Requests Under the Plant Protection Act

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our domestic quarantine regulations 
to establish a process by which a State or political subdivision of a 
State could request approval to impose prohibitions or restrictions on 
the movement in interstate commerce of specific articles that are in 
addition to the prohibitions and restrictions imposed by the Animal and 
Plant Health Inspection Service. The Plant Protection Act provides that 
States or political subdivisions of States may make such special need 
requests, but there are currently no procedures in place for their 
submission or consideration. This action would establish a process by 
which States may make a special need request.

DATES: We will consider all comments that we receive on or before June 
5, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower ``Search Regulations and Federal 
Actions'' box, select ``Animal and Plant Health Inspection Service'' 
from the agency drop-down menu, then click on ``Submit.'' In the Docket 
ID column, select APHIS-2005-0103 to submit or view public comments and 
to view supporting and related materials available electronically. 
After the close of the comment period, the docket can be viewed using 
the ``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2005-0103, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2005-0103.
    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: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. James Writer, Agriculturist, 
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit 
137, Riverdale, MD 20737-1231; (301) 734-7121.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Protection Act (PPA, 7 U.S.C. 7701 et seq.) gives 
authority to the Secretary of Agriculture to prohibit or restrict the 
importation, entry, exportation, or movement in interstate commerce of 
any plant, plant product, biological control organism, noxious weed, 
article, or means of conveyance if the Secretary determines that the 
prohibition or restriction is necessary to prevent the introduction of 
a plant pest or noxious weed into the United States, or the 
dissemination of a plant pest or noxious weed within the United States. 
The Secretary has delegated this authority to the Administrator of the 
Animal and Plant Health Inspection Service (APHIS).
    Under section 436 of the PPA (7 U.S.C. 7756), no State or political 
subdivision of a State may regulate the movement in interstate commerce 
of any article, means of conveyance, plant, biological control 
organism, plant pest, noxious weed, or plant product in order (1) to 
control a plant pest or noxious weed; (2) to eradicate a plant pest or 
noxious weed; or (3) to prevent the introduction or dissemination of a 
biological control organism, plant pest, or noxious weed if the 
Secretary has issued a regulation or order to prevent the dissemination 
of the biological control organism, plant pest, or noxious weed within 
the United States. The only exceptions to this prohibition are when a 
State or political subdivision of a State imposes regulations which are 
consistent with and do not exceed the regulations or orders issued by 
the Secretary, or when the State or political subdivision of a State 
demonstrates to the Secretary, and the Secretary finds, that there is a 
special need for additional prohibitions or restrictions based on sound 
scientific data or a thorough risk assessment.
    Although the PPA provides that the Secretary may grant a request 
from a State or political subdivision of a State for a special need 
exception, APHIS has not issued criteria regarding the content, 
submission, and consideration of such requests. Therefore, in this 
document, we are proposing to amend our domestic quarantine notices in 
7 CFR part 301 by adding a new ``Subpart--Special Need Requests'' (7 
CFR 301.1 through 301.1-3) in which we would set out procedures for the 
submission and handling of special need requests. Proposed Sec.  301.1 
would detail the purpose and scope of the new subpart, and proposed 
Sec.  301.1-1 would provide definitions for certain terms used in the 
subpart. Proposed Sec.  301.1-2 would spell out the information that a 
State or a political subdivision of a State applying for a special need 
exception would have to provide, and proposed Sec.  301.1-3 would 
explain the actions that APHIS would take following its receipt of a 
special need request.

Purpose and Scope

    Section 301.1 of the proposed regulations would explain the purpose 
of the new subpart and how the subpart may be used in accordance with 
the PPA and the implementing regulations. Paragraph (a) would describe 
what a special need request is in the context of the PPA. Paragraph (b) 
would explain that the subpart contains instructions for the submission 
and consideration of special need requests under the PPA.

Definitions

    Section 301.1-1 of the proposed regulations would contain eight

[[Page 16712]]

standard definitions that are consistent with those used elsewhere in 
our regulations. We would define Administrator as the Administrator of 
the Animal and Plant Health Inspection Service or any person authorized 
to act for the Administrator; Animal and Plant Health Inspection 
Service (APHIS) as the Animal and Plant Health Inspection Service of 
the United States Department of Agriculture; and biological control 
organism as any enemy, antagonist, or competitor used to control a 
plant pest or noxious weed. We would also define interstate commerce as 
trade, traffic, or other commerce (A) from one State into or through 
any other State; or (B) within the District of Columbia, Guam, the 
Virgin Islands of the United States, or any other territory or 
possession of the United States; move (moved, movement) as shipped, 
offered to a common carrier for shipment, received for transportation 
or transported by a common carrier, or carried, transported, moved, or 
allowed to be moved; and noxious weed as any plant or plant product 
that can directly or indirectly injure or cause damage to crops 
(including nursery stock or plant products), livestock, poultry, or 
other interests of agriculture, irrigation, navigation, the natural 
resources of the United States, the public health or the environment. 
In addition, we would define plant pest as any living stage of any 
insects, mites, nematodes, slugs, snails, protozoa, or other 
invertebrate animals, bacteria, fungi, other parasitic plants or 
reproductive parts thereof, viruses, or any organisms similar to or 
allied with any of the foregoing, or any infectious substances which 
can directly or indirectly injure or cause disease or damage in any 
plants or parts thereof or any processed, manufactured, or other 
products of plants; and State as the District of Columbia, Puerto Rico, 
the Northern Mariana Islands, or any State, territory, or possession of 
the United States.

Submission of Requests

    Section 301.1-2 of the proposed regulations would describe the 
information that would have to be included in any request to the 
Administrator for a special need exception. As our contacts are at the 
State level, paragraph (a) would provide that a special need request 
generated by a political subdivision of a State would have to be 
submitted to APHIS through the State. Paragraph (a) would also state 
that all special need requests must be signed by the appropriate 
executive official or a plant protection official of the State and must 
contain the following information:
     Data drawn from a scientifically sound detection survey, 
showing that the biological control organism, noxious weed, or plant 
pest of concern does not exist in the State or political subdivision 
or, if already present in the State or political subdivision, the 
distribution of the biological control organism, noxious weed, or plant 
pest of concern;
     If the biological control organism, noxious weed, or plant 
pest is not present in the State or political subdivision, a risk 
analysis or other scientific data showing that the biological control 
organism, noxious weed, or plant pest could enter the State or 
political subdivision and become established;
     Specific information showing that, if introduced into or 
allowed to spread within the State or political subdivision, the 
biological control organism, noxious weed, or plant pest would harm or 
injure the environment, and/or cause economic harm to industries in the 
State or political subdivision, including direct information about what 
harm or injury would result from establishment of the biological 
control organism, noxious weed, or plant pest in the State or political 
subdivision;
     Specific information showing that the State or political 
subdivision has characteristics that make it particularly vulnerable to 
the biological control organism, noxious weed, or plant pest, such as 
unique plants, diversity of flora, historical concerns, or any other 
special basis for the request for additional restrictions or 
prohibitions; and
     Information detailing the proposed additional prohibitions 
or restrictions, and scientific data demonstrating that the proposed 
additional prohibitions or restrictions would be necessary and 
adequate, and that there is no less drastic action that is feasible and 
that would be adequate, to prevent the introduction and spread of the 
biological control organism, noxious weed, or plant pest in the State 
or political subdivision.
    We believe that this specific information, which would be 
considered along with more general information available to APHIS, 
would be necessary for the Administrator to be able to determine 
whether to grant or deny a request for a special need exception. 
Paragraph (b) would provide an address for the submission of requests.

Action on Special Need Requests

    Section 301.1-3 of the proposed regulations would explain the 
process APHIS would use following the receipt of a special need 
request. Paragraph (a) would provide that, upon receipt of a complete 
special need request submitted in accordance with Sec.  301.1-2, we 
would publish a notice in the Federal Register announcing the 
availability of the special need request. This notice would provide a 
location where the public could view the request along with all 
materials submitted in support of the request.
    Paragraph (b) would state that, following the close of the comment 
period, we would publish another notice to advise the public of the 
Administrator's decision to either grant or deny the special need 
request. The Administrator's determination would be based upon his or 
her review and evaluation of the information submitted by the State or 
political subdivision in support of its request and would take into 
account any comments received.
    The Administrator's finding that the State or political subdivision 
has demonstrated, based on sound scientific data or a thorough risk 
assessment, that there is a special need for additional prohibitions or 
restrictions would mean that the State or political subdivision would 
be authorized to impose specific prohibitions or restrictions that go 
beyond those identified in the regulations or orders issued by APHIS. 
APHIS would work with the State to ensure that the additional 
prohibitions or restrictions are within the scope of the special need 
exception granted by the Administrator. If the Administrator denied a 
special need request, the reasons for the denial would be communicated 
to the State or political subdivision and reported in a follow-up 
Federal Register notice. A State or political subdivision that has had 
its request denied would be given the opportunity to submit additional 
supporting information in order to request a reconsideration of its 
request. If the Administrator withdraws approval of a special need 
exception, the reasons for the withdrawal would be communicated to the 
State or political subdivision and reported in the Federal Register. 
Reasons for withdrawal of approval of a special need exception may 
include the availability of new scientific data or changes in APHIS 
regulations.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. This rule 
has been determined to be significant for the purposes of Executive 
Order 12866 and, therefore, has been reviewed by the Office of 
Management and Budget.
    For this rule, we have prepared an economic analysis. The economic 
analysis provides a cost-benefit analysis

[[Page 16713]]

as required by Executive Order 12866, as well as an analysis of the 
potential economic effects of this proposed rule on small entities, as 
required under 5 U.S.C. 603. The economic analysis is set forth below.

Introduction

    Under the Plant Protection Act, section 436 (7 U.S.C. 7756(b)(2)), 
States and political subdivisions of States may request restrictions 
and prohibitions that are in addition to restrictions and prohibitions 
imposed by our Federal regulations if there is a special need for a 
higher level of protection for that State or political subdivision. 
APHIS proposes to require that States and political subdivisions of 
States that wish to request additional restrictions or prohibitions on 
the interstate movement of articles into their jurisdictions provide 
the following information, and APHIS would evaluate the information to 
determine whether States or political subdivisions have adequately 
demonstrated a special need under the Plant Protection Act:
     A State or political subdivision of a State that requests 
additional restrictions or prohibitions based on a special need must 
show that the pest of concern does not exist in the State. Therefore a 
request should include current data showing that a scientifically sound 
detection survey was performed in the State, and the pest was not 
found.
     The pest should be a true concern for the State or 
political subdivision of a State, which would be documented with a pest 
risk assessment or other scientific data showing that the pest could 
enter the State and become established.
     The pest should be of significant concern for the State or 
political subdivision of a State, in that it would harm or injure the 
environment, and/or cause economic harm to industries in the State. The 
request should contain direct information about what harm or injury 
would result from establishment of the pest in the State.
     The State or political subdivision of a State should list 
characteristics that make it particularly vulnerable to the pest, such 
as unique plants, diversity of flora, historical concerns, or any other 
special basis for the request for additional restrictions or 
prohibitions.

Expected Benefits

    The principal benefit for entities in a special need area would be 
the pest risk reduction attributable to the action. The risk of entry 
and establishment of a pest of concern both prior to and after the 
granting of a special need request would need to be estimated before 
the benefit of the reduced risk could be determined. It is unlikely 
that these risk levels would be measurable.
    Other possible benefits of a special need request would be easier 
to calculate. Reduced pest risk due to additional restrictions or 
prohibitions may mean that certain mitigation measures in the special 
need area would no longer be considered necessary. There may be less 
need for inspections, special permits, certain pesticide applications, 
special handling or packaging, or other safeguards practiced or 
required prior to the granting of the special need request. Costs 
forgone once the request has been granted would represent benefits of 
the action.
    Agricultural and other entities in a special need area may also 
benefit from the reduced availability of articles restricted or 
prohibited because of the special need request. Restricted supplies 
from sources outside the special need area could create increased 
market opportunities for suppliers within the area. If quantities 
normally purchased could not be provided by suppliers within the 
special need area (or from outside sources that do not present a pest 
risk), then suppliers likely would benefit from an increase in price.

Expected Costs

    Costs would be incurred both in the special need area and in the 
area placed under additional restrictions or prohibitions. In each 
case, the size of the impact would depend upon the volume of supply 
affected by a special need request. As just described, prices in a 
special need area may increase if the available quantity of an article 
is reduced because of restrictions or prohibitions. But gains for 
suppliers within the special need area from price increases would come 
at the expense of the area's consumers, and overall there would be a 
net loss in social welfare. Losses may be incurred not only by end-
users, but also by intermediary entities. Stores selling the restricted 
articles (nurseries, landscaping companies, grocery stores) may face 
declining demand, depending upon the response of consumers to the price 
increase, and reduced net revenues.
    For the area placed under additional restrictions or prohibitions 
because of a special need request, sales of affected articles may 
decline if other replacement markets are not found. Even if shipments 
to the special need area can be maintained, additional costs may be 
incurred. For example:
     Growers may be required to have inspections conducted more 
frequently than APHIS would otherwise require (a cost that may be borne 
by the State or political subdivision).
     Growers (or the State or political subdivision) may be 
required to pay for special phytosanitary certificates or permits.
     Growers may incur costs related to additional risk 
mitigations, such as particular pesticide applications or treatments, 
netting, or special greenhouse equipment.
     Additional inspections or restrictions may result in 
shipping delays.
     Shipping companies may experience reduced business or may 
face additional costs related to container or sealing requirements of 
the special need request.

Expected Net Effects

    The overriding benefit for an area granted a special need request 
would be the reduced risk of pest entry and establishment. Other, 
market-related benefits are likely to be outweighed by costs incurred 
in the special need area and in the area placed under additional 
restrictions or prohibitions. Costs, including those associated with 
additional risk mitigation requirements, may be borne by agricultural 
entities, the public sector, or, most likely, a combination of the two.

Initial Regulatory Flexibility Analysis

    Objectives and legal basis. Section 436(b) of the Plant Protection 
Act requires that a State demonstrate to the Secretary that it has a 
special need for additional restrictions or prohibitions, that the 
Secretary agree that there is a special need, and that the additional 
restrictions and prohibitions requested by the State be based on sound 
scientific data or a thorough risk assessment. The proposed rule would 
establish specific criteria by which a special need request from a 
State would be evaluated.
    Reason for the action. The desirability of specific criteria for 
evaluating special need requests has become apparent from requests 
received by the Agency from several States for additional restrictions 
or prohibitions on the interstate movement of articles that would be 
more restrictive than those imposed by the Phytophthora ramorum 
regulations in 7 CFR 301.92 through 301.92-11.
    Small entities that may be affected. Agricultural and other 
entities would not be affected by the proposed rule, per se, but rather 
by the special need requests that follow. The proposed rule would 
simply establish a process by which States may make a special need 
request and provide the Agency with a specific set of evaluation 
criteria.

[[Page 16714]]

    U.S. agricultural businesses are predominantly small entities. At 
all stages of economic activity--production, transportation, 
processing, and wholesale and retail sales--agricultural industries are 
generally composed of a large number of small firms and a small number 
of large firms (with the latter usually generating the major share of 
industry revenue). Given this prevailing pattern, any impacts that 
special need requests may have on agricultural businesses can be 
expected generally to affect a large if not substantial number of small 
entities. The number of affected small entities would vary by request, 
and would depend on the particular circumstances in the affected States 
or political subdivisions.
    Reporting, recordkeeping and other compliance requirements. This 
proposed rule contains various recordkeeping and reporting 
requirements. These requirements are described in this document under 
the heading ``Paperwork Reduction Act.''
    We expect that costs related to preparing a special need request 
would be borne by the public sector, but it is possible that 
agricultural industries (and therefore small entities) could incur 
indirect costs depending on arrangements for generating the required 
information. Also, the Regulatory Flexibility Act's definition of small 
entities includes small governmental jurisdictions, that is, 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand.'' Thus, it is possible that special need areas could 
correspond to or include small governmental jurisdictions.
    Of greater impact than costs associated with the preparation of a 
request will be the costs and benefits of complying with the additional 
restrictions or prohibitions, once a special need request is granted by 
the Agency. Types of benefits and costs that may result from a special 
need request are identified at the beginning of this document.
    Duplicating, overlapping, or conflicting Federal rules. APHIS has 
not identified any duplication, overlap, or conflict of the proposed 
rule with other Federal rules.
    Alternatives that would accomplish the stated objectives and 
minimize any significant economic impact on small entities. The 
proposed rule would establish a set of criteria for APHIS to use in 
evaluating special need requests submitted by special need areas. 
Alternatives to the proposed rule would be to either leave the 
regulations unchanged, or to require a different set of criteria than 
is proposed. Leaving the regulations unchanged would be unsatisfactory 
for the public and for APHIS. Granting of special need requests is 
currently not efficient due to the lack of an explicit set of criteria 
that States and political subdivisions know will be used to evaluate 
special need requests. Information contained in a special need request 
therefore may be either inadequate or superfluous. The proposed set of 
criteria would provide an unambiguous basis for the equitable 
evaluation of special need requests.
    APHIS considers the proposed set of criteria to be fully sufficient 
for evaluation purposes. We invite the public to comment on the 
proposed criteria; suggested changes should be supported by an 
explanation of why the changes should be considered. We would also 
appreciate any comments on expected impacts of special need requests 
for small entities, and on how the proposed rule could be modified to 
reduce expected costs or burdens for small entities consistent with its 
objectives. We reiterate that the proposed rule, in itself, would not 
affect small entities, but rather would influence future actions--
granting of special need requests--that would affect small entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

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. APHIS-
2005-0103. Please send a copy of your comments to: (1) Docket No. 
APHIS-2005-0103, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 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.
    In this document, we are proposing to amend the domestic quarantine 
notices in 7 CFR part 301 by adding a new ``Subpart-Special Need 
Requests'' (7 CFR 301.1 through 301.1-3) in which we would set out 
procedures for the submission and handling of special need requests. 
The request would have to contain specific information substantiating 
the request, including data showing the absence or distribution of the 
biological control organism, noxious weed, or plant pest; a risk 
analysis or other scientific data showing that it could enter the State 
or political subdivision and become established; a description of its 
potential to cause environmental or economic harm and any factors that 
make the area particularly vulnerable to such harm; and information 
detailing the proposed additional prohibitions or restrictions. We are 
asking OMB to approve the use of these information collection 
activities in connection with our efforts to establish a process for 
special need requests.
    We are soliciting comments from the public (as 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

[[Page 16715]]

is estimated to average 160 hours per response.
    Respondents: State Governments.
    Estimated annual number of respondents: 10.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 10.
    Estimated total annual burden on respondents: 1,600 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 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we propose to amend 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 would continue to read as 
follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).

    2. Part 301 would be amended by adding a new ``Subpart--Special 
Need Requests,'' Sec. Sec.  301.1 through 301.1-3, to read as follows:
Subpart--Special Need Requests
Sec.
301.1 Purpose and scope.
301.1-1 Definitions.
301.1-2 Criteria for special need requests.
301.1-3 Action on special need requests.

Subpart--Special Need Requests


Sec.  301.1  Purpose and scope.

    (a) Under section 436 of the Plant Protection Act (7 U.S.C. 7756), 
a State or political subdivision of a State may not impose prohibitions 
or restrictions upon the movement in interstate commerce of articles, 
means of conveyance, plants, plant products, biological control 
organisms, plant pests, or noxious weeds if the Secretary has issued a 
regulation or order to prevent the dissemination of the biological 
control organism, plant pest, or noxious weed within the United States. 
The only exceptions to this are:
    (1) If the prohibitions or restrictions issued by the State or 
political subdivision of a State are consistent with and do not exceed 
the regulations or orders issued by the Secretary, or
    (2) If the State or political subdivision of a State demonstrates 
to the Secretary and the Secretary finds that there is a special need 
for additional prohibitions or restrictions based on sound scientific 
data or a thorough risk assessment.
    (b) The regulations in this subpart provide for the submission and 
consideration of special need requests when a State or a political 
subdivision of a State seeks to impose prohibitions or restrictions on 
the movement in interstate commerce of articles, means of conveyance, 
plants, plant products, biological control organisms, plant pests, or 
noxious weeds that are in addition to the prohibitions or restrictions 
imposed by this part or by a Federal Order.


Sec.  301.1-1  Definitions.

    The following definitions apply in this subpart:
    Administrator. The Administrator, Animal and Plant Health 
Inspection Service (APHIS), or any person authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service (APHIS). The Animal and 
Plant Health Inspection Service of the United States Department of 
Agriculture.
    Biological control organism. Any enemy, antagonist, or competitor 
used to control a plant pest or noxious weed.
    Interstate commerce. Trade, traffic, or other commerce:
    (1) From one State into or through any other State; or
    (2) Within the District of Columbia, Guam, the Virgin Islands of 
the United States, or any other territory or possession of the United 
States.
    Move (moved, movement). Shipped, offered to a common carrier for 
shipment, received for transportation or transported by a common 
carrier, or carried, transported, moved or allowed to be moved.
    Noxious weed. Any plant or plant product that can directly or 
indirectly injure or cause damage to crops (including nursery stock or 
plant products), livestock, poultry, or other interests of agriculture, 
irrigation, navigation, the natural resources of the United States, the 
public health or the environment.
    Plant pest. Any living stage of any insects, mites, nematodes, 
slugs, snails, protozoa, or other invertebrate animals, bacteria, 
fungi, other parasitic plants or reproductive parts thereof, viruses, 
or any organisms similar to or allied with any of the foregoing, or any 
infectious substances which can directly or indirectly injure or cause 
disease or damage in any plants or parts thereof or any processed, 
manufactured, or other products of plants.
    State. The District of Columbia, Puerto Rico, the Northern Mariana 
Islands, or any State, territory, or possession of the United States.


Sec.  301.1-2  Criteria for special need requests.

    (a) A special need request, as described in Sec.  301.1, may be 
generated by a State or a political subdivision of a State. If the 
request is generated by a political subdivision of a State, the request 
must be submitted to APHIS through the State. All special need requests 
must be signed by the executive official or a plant protection official 
of the State and must contain the following:
    (1) Data drawn from a scientifically sound detection survey, 
showing that the biological control organism, noxious weed, or plant 
pest of concern does not exist in the State or political subdivision 
or, if already present in the State or political subdivision, the 
distribution of the biological control organism, noxious weed, or plant 
pest of concern;
    (2) If the biological control organism, noxious weed, or plant pest 
is not present in the State or political subdivision, a risk analysis 
or other scientific data showing that the biological control organism, 
noxious weed, or plant pest could enter the State or political 
subdivision and become established;
    (3) Specific information showing that, if introduced into or 
allowed to spread within the State or political subdivision, the 
biological control organism, noxious weed, or plant pest would harm or 
injure the environment and/or cause economic harm to industries in the 
State or political subdivision. The request should contain detailed 
information about what harm or injury would result from the 
introduction or dissemination of the biological control organism,

[[Page 16716]]

noxious weed, or plant pest in the State or political subdivision;
    (4) Specific information showing that the State or political 
subdivision has characteristics that make it particularly vulnerable to 
the biological control organism, noxious weed, or plant pest, such as 
unique plants, diversity of flora, historical concerns, or any other 
special basis for the request for additional restrictions or 
prohibitions; and
    (5) Information detailing the proposed additional prohibitions or 
restrictions and scientific data demonstrating that the proposed 
additional prohibitions or restrictions are necessary and adequate, and 
that there is no less drastic action that is feasible and that would be 
adequate, to prevent the introduction or spread of the biological 
control organism, noxious weed, or plant pest in the State or political 
subdivision.
    (b) All special need requests must be submitted to [Address to be 
added in final rule].


Sec.  301.1-3  Action on special need requests.

    (a) Upon receipt of a complete special need request submitted in 
accordance with Sec.  301.1-2, APHIS will publish a notice in the 
Federal Register to inform the public of the special need request and 
to make the request and its supporting information available for review 
and comment for at least 60 days.
    (b) Following the close of the comment period, APHIS will publish 
another notice announcing the Administrator's decision to either grant 
or deny the special need request. The Administrator's determination 
will be based upon the evaluation of the information submitted by the 
State or political subdivision of a State in support of its request and 
would take into account any comments received.
    (1) If the Administrator grants the special need request, the State 
or political subdivision of a State will be authorized to impose only 
the specific prohibitions or restrictions identified in the request and 
approved by APHIS. APHIS will coordinate with the State, or with the 
State on behalf of the political subdivision of the State, to ensure 
that the additional prohibitions or restrictions are in accord with the 
special need exception granted by the Administrator.
    (2) If the Administrator denies the special need request, the State 
or political subdivision of a State will be notified in writing of the 
reason for the denial and may submit any additional information the 
State or political subdivision of a State may have in order to request 
a reconsideration.
    (c) If the Administrator determines that there is a need for the 
withdrawal of a special need exception, the reasons for the withdrawal 
would be communicated to the State or to the political subdivision of 
the State and APHIS will publish a notice in the Federal Register to 
inform the public of the withdrawal of the special need exception and 
to make the information supporting the withdrawal available for review 
and comment for at least 60 days. Reasons for withdrawal of approval of 
a special need exception may include, but are not limited to, the 
availability of new scientific data or changes in APHIS regulations. 
Following the close of the comment period, APHIS will publish another 
notice announcing the Administrator's decision to either withdraw or 
uphold the special need exception. The Administrator's determination 
will be based upon the evaluation of the information submitted in 
support of the withdrawal and would take into account any comments 
received.

    Done in Washington, DC, this 29th day of March 2006.
Jeremy Stump,
Acting Under Secretary for Marketing and Regulatory Programs.
[FR Doc. E6-4840 Filed 4-3-06; 8:45 am]
BILLING CODE 3410-34-P