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



[[Page 31171]]

Vol. 76

Friday,

No. 103

May 27, 2011

Part III





Department of Agriculture





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Animal and Plant Health Inspection Service



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7 CFR Part 319



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

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

[[Page 31172]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

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


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

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

DATES: Effective Date: June 27, 2011.

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

SUPPLEMENTARY INFORMATION: 

Background

    Under the Plant Protection Act (PPA) (7 U.S.C. 7701 et seq.), the 
Secretary of Agriculture is authorized to take such actions as may be 
necessary to prevent the introduction and spread of plant pests and 
noxious weeds within the United States. The Secretary has delegated 
this responsibility to the Administrator of the Animal and Plant Health 
Inspection Service (APHIS).
    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of certain plants and plant products into the United States 
to prevent the introduction of plant pests that are not already 
established in the United States or plant pests that may be established 
but are under official control to eradicate or contain them within the 
United States. The regulations in ``Subpart--Nursery Stock, Plants, 
Roots, Bulbs, Seeds, and Other Plant Products,'' Sec. Sec.  319.37 
through 319.37-14 (referred to below as the regulations), restrict, 
among other things, the importation of living plants, plant parts, 
seeds, and plant cuttings for planting or propagation. These 
regulations are intended to ensure that imported nursery stock does not 
serve as a host for plant pests, such as insects or pathogens, that can 
cause damage to U.S. agricultural and environmental resources.
    The regulations in 7 CFR part 360, ``Noxious Weed Regulations,'' 
contain prohibitions and restrictions on the movement of noxious weeds 
or plant products listed in that part into or through the United States 
and interstate. Plants are designated as noxious weeds when the plants 
themselves can cause damage to U.S. agricultural and environmental 
resources, meaning they can only be moved under a permit containing 
conditions to prevent their introduction into the environment. The 
importation of some plants is subject to both the nursery stock 
regulations and the noxious weed regulations.
    On July 23, 2009, we published in the Federal Register (74 FR 
36403-36414, Docket No. APHIS-2006-0011) a proposal \1\ to amend the 
nursery stock regulations. We proposed to change the nursery stock 
regulations to refer instead to ``plants for planting,'' a term that is 
consistent with the International Plant Protection Convention's (IPPC) 
Glossary of Phytosanitary Terms.\2\ (In this document, we will use the 
term ``plants for planting'' to refer to all the articles subject to 
what have been called the nursery stock regulations, as we did in the 
proposal.)
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    \1\ To view the proposed rule, its supporting documentation, and 
the comments we received, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0011.
    \2\ The Glossary of Phytosanitary Terms is International 
Standard for Phytosanitary Measures (ISPM) Number 5. To view this 
and other ISPMs on the Internet, go to http://www.ippc.int/ and 
click on the ``Adopted Standards'' link under the ``Core 
activities'' heading.
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    We proposed to create a new category of plants for planting whose 
importation is not authorized pending the completion of a pest risk 
analysis. We referred to the category as the ``not authorized pending 
pest risk analysis'' (NAPPRA) category. We proposed that the NAPPRA 
category would include two lists: A list of taxa that we have judged, 
on the basis of scientific evidence, to be potential quarantine pest 
plants, and therefore potential noxious weeds; and a list of taxa that 
we have judged, on the basis of scientific evidence, to be potential 
hosts of quarantine pests.\3\ We proposed to define a quarantine pest 
as a plant pest or noxious weed that is of potential economic 
importance to the United States and not yet present in the United 
States, or present but not widely distributed and being officially 
controlled.
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    \3\ We use the term ``taxon'' (plural: taxa) to refer to any 
grouping within botanical nomenclature, such as family, genus, 
species, or cultivar.
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    We proposed to add taxa of plants for planting to the NAPPRA 
category based on scientific evidence that indicates that their 
importation poses a risk of introducing a quarantine pest into the 
United States, rather than on a comprehensive pest risk analysis (PRA). 
Additionally, we proposed to establish the NAPPRA lists on a Web site 
and notify the public of our determination that taxa of plants for 
planting are potential quarantine pests or potential hosts of 
quarantine pests, and thus should be added to the NAPPRA lists, by 
publishing notices in the Federal Register.
    Finally, we proposed to allow any person to request that APHIS 
conduct a PRA on any plant taxon listed in the NAPPRA category. We 
proposed that, after completing the PRA, we would initiate rulemaking 
either to allow the importation of the taxon subject to the 
restrictions described in the risk management section of the PRA or, if 
the risk associated with the importation of the taxon cannot be 
feasibly mitigated, to prohibit its importation.

[[Page 31173]]

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

Support for the Proposed Rule

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

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

[[Page 31174]]

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

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

General Opposition to the Proposed Rule

    Several commenters expressed general opposition to the proposed 
rule on the basis that it would impose additional restrictions that 
might not be justified on the importation of plants for planting. Many 
commenters characterized the proposed NAPPRA category as a prohibition 
on the importation of plants for planting, with exceptions only for 
plants that were assessed and determined to be safe. One commenter 
expressed concern that the ultimate goal of our regulatory efforts was 
to prohibit the importation of all plants for planting unless the 
plants have been screened and found to be safe.
    Some commenters raised specific concerns with respect to the 
implications of a broad prohibition on the importation of plants for 
planting. One commenter stated that invasive plants have many ways of 
arriving in the United States and that few of them can be documented as 
ornamental species that were introduced through horticulture. Two 
commenters stated that any slowing or complication of the process of 
importation of seeds and plant material only encourages the illegal and 
undocumented shipping of that material. One commenter stated that a 
broad prohibition on plants for planting would affect plants that are 
only weeds in certain situations and are clearly valuable in others, 
such as many food crops. One commenter stated that the costs associated 
with testing every taxon of plants for planting to determine whether 
each is safe would be prohibitive. One commenter stated that no 
specific plants were cited in the proposed rule as being invasive or as 
vectors of pests.
    Some commenters opposed the proposed NAPPRA category on the grounds 
that it would hamper the conservation of plant material. One commenter 
stated that conservation of plant material is an extremely time-
sensitive process, and any slowing of the process could result in the 
loss of important germplasm or even species. The commenter stated that 
this would be absolutely fatal for material with short viability or for 
emergency conservation measures. One commenter stated that seeds were 
essential for preservation of biodiversity in agricultural systems; 
another suggested that we should continue to allow the importation of 
organic seed and other quality seed. One commenter stated that some 
species may not be able to survive outside greenhouse conditions, 
meaning there would be no need to prohibit their importation into the 
United States.
    As one of the commenters noted, we are not imposing any additional 
restrictions on specific taxa of plants for planting in this final 
rule. Rather, this final rule provides a process by which we can impose 
restrictions on specific taxa. When we determine that a taxon of plants 
for planting is a quarantine pest or a host of a quarantine pest, we 
will publish a notice in the Federal Register to inform the public of 
our determination and make available a data sheet that details the 
scientific evidence that we used in making the determination. At that 
point, any interested party will have the opportunity to comment on the 
proposed addition of the taxon to one of the NAPPRA lists, supporting 
or opposing the addition. We will particularly welcome comments on the 
scientific evidence supporting our determination, which will be 
detailed in the data sheet accompanying the notice.
    Although one commenter stated that few quarantine pest plants had 
been introduced through the horticultural trade, several commenters who 
supported the proposed rule provided examples of ornamental species 
imported for horticulture that had become quarantine pest plants. In 
any case, as discussed, we are not imposing broad prohibitions or 
restrictions on ornamental species imported for horticulture, or on any 
other taxa imported for any other use.
    Because only specific taxa of plants for planting will be added to 
the

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NAPPRA lists, we do not expect that this final rule will result in a 
large increase in illegal importation of plants for planting. We have 
existing inspection, investigation, and enforcement processes that work 
to prevent the importation of plants for planting whose importation is 
prohibited in Sec.  319.37-2. We will use those processes to ensure 
that NAPPRA taxa are not illegally imported in the same way that we 
currently do for taxa whose importation is prohibited. We are also 
providing for plants for planting listed as NAPPRA to be imported for 
experimental or scientific purposes under controlled conditions, so 
scientific research can be conducted on them.
    Conservation of plant material will continue as it has under the 
current regulations, unless a taxon of the plant material in question 
is determined to be a quarantine pest or a host of a quarantine pest 
and the taxon is subsequently added to one of the NAPPRA lists. As one 
commenter noted, a taxon requiring conservation is unlikely to be added 
to the NAPPRA lists as a quarantine pest, since any plant that has 
difficulty surviving in field conditions is likely incapable of 
reproducing enough to cause potentially economically important damage 
to agricultural or environmental resources. For that reason, a taxon 
that could not survive outside a greenhouse would also be unlikely to 
be added to the NAPPRA lists.
    With respect to the concerns about seed, we note that the NAPPRA 
list of taxa that are hosts of quarantine pests allows the importation 
of seed unless we specify that seed is regulated. We would only 
regulate the seed of hosts of a quarantine pest if the pest in question 
could be introduced and established in the United States through the 
importation of seed.
    Some commenters expressed specific concerns about the impact of a 
prohibition on the importation of plants for planting except those that 
have been determined to be safe for U.S. biodiversity and the 
importation of plants with beneficial uses. One commenter cited the 
discovery of important genetic variability in Sophora toromiro, now 
extinct in the wild, in the hands of a Chilean nurseryman and other 
individuals outside of botanic gardens, as indicating the importance of 
not restricting public access to biological diversity.
    In addition, the proposed rule discussed some comments we received 
on the May 2004 ANPR that addressed biodiversity. We summarized these 
comments as stating that any further restrictions on the importation of 
plants for planting would adversely impact the overall biodiversity of 
plants in the United States. We stated in the proposed rule that the 
purpose of establishing the NAPPRA category, as with all our 
restrictions on the importation of plants for planting, is to prevent 
damage to agricultural and other resources caused by plants that are 
plant pests or that are hosts of plant pests. Preventing this damage, 
we stated, helps to ensure that the current biodiversity of the United 
States is not adversely affected.
    One commenter stated that there is no evidence that pests or 
invasive species reduce biodiversity; rather, in all cases, they have 
increased biodiversity. The commenter asked us to provide peer-reviewed 
scientific evidence that biodiversity has decreased at any time because 
of imports.
    We appreciate the opportunity to clarify our statement. There are 
multiple types of biodiversity that ecologists and other scientists 
consider when evaluating biodiversity. Total biodiversity, the type to 
which we believe the commenter refers, involves a simple count of the 
number of species present in a country or in an area within a country. 
Site-specific biodiversity may take into account the relative 
distribution of taxa within a site, a larger area, or even a country.
    We regulate the importation of taxa of plants for planting that are 
quarantine pests or that are hosts of quarantine pests based on the 
damage they could cause to U.S. agricultural and environmental 
resources. Sometimes, the damage a quarantine pest causes can reduce 
site-specific biodiversity. For example, if an imported quarantine pest 
plant damaged previously thriving species and reduced their numbers 
while rapidly propagating throughout their former habitat, the total 
number of species at that site would have increased, but the diversity 
of their distribution would have decreased substantially.
    Similarly, the emerald ash borer may kill virtually all of the ash 
trees in areas in which the beetle occurs. Although the total 
biodiversity within the United States was increased by one species with 
the introduction and establishment of the emerald ash borer, the 
distribution of hardwood trees in U.S. forests where the emerald ash 
borer occurs is markedly less diverse.
    We will only add a plant taxon to the NAPPRA category if it is a 
quarantine pest or a host of a quarantine pest. Preventing the 
introduction of quarantine pests or hosts of quarantine pests into the 
United States helps to avert the damage that would occur if they were 
introduced. Sometimes, as discussed, that damage can reduce 
biodiversity, meaning that preserving existing biodiversity is one 
beneficial effect associated with preventing damage from quarantine 
pests.
    With respect to the general concerns about restricting access to 
biodiversity, as we will only add specific taxa to the NAPPRA category 
based on our determination that the taxa are quarantine pests or hosts 
of quarantine pests, we do not believe that biodiversity and 
importation of plants with beneficial effects will be widely affected. 
The importation of most taxa of plants for planting will continue to be 
allowed.
    One commenter stated that the proposed rule did not seem to be 
entirely in accordance with ISPM No. 1, ``Phytosanitary Principles for 
the Protection of Plants and the Application of Phytosanitary Measures 
in International Trade.'' (Countries that are signatories to the IPPC, 
including the United States, commit to promulgating regulations that 
are consistent with the various ISPMs, unless a country supports a 
deviation from the ISPMs with a technical justification.) The commenter 
specifically cited the principles of necessity, managed risk, minimal 
impact, and technical justification that are discussed in that 
document. The commenter stated that it would be difficult to provide 
specific comments on this issue, as the list of plants added to the new 
category is not known.
    We are not adding any taxa of plants for planting to the NAPPRA 
category in this rulemaking; this rulemaking only sets up the NAPPRA 
category. Members of the public will have the opportunity to comment on 
all additions to the NAPPRA category.
    We have reviewed the principles cited by the commenter from ISPM 
No. 1 and found the proposed rule to be in accordance with those 
principles.
    Necessity: ISPM No. 1 states that contracting parties (i.e., 
signatories to the IPPC) may apply phytosanitary measures only where 
such measures are necessary to prevent the introduction and/or spread 
of quarantine pests. We will only add taxa to the NAPPRA category when 
it is necessary to do so to prevent the introduction of quarantine 
pests, either taxa of plants for planting that are quarantine pests 
themselves or taxa that are hosts of quarantine pests.
    Managed risk and minimal impact: ISPM No. 1 states that contracting 
parties should apply phytosanitary measures based on a policy of 
managed

[[Page 31177]]

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

Definition of Quarantine Pest

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

[[Page 31178]]

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

Definition of Official Control and Scope of the NAPPRA Category

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

[[Page 31179]]

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

[[Page 31180]]

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

[[Page 31181]]

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

[[Page 31182]]

regulated non-quarantine pest regulatory approach in the future.

Definition of Plants for Planting

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

Definition of Noxious Weed

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

Definition of Taxon (Taxa)

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

[[Page 31183]]

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

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

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

[[Page 31184]]

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

Information To Be Made Available on the Internet

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

[[Page 31185]]

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

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

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

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

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

[[Page 31186]]

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

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

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

[[Page 31187]]

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

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

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

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

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

[[Page 31188]]

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

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

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

[[Page 31189]]

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

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

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

[[Page 31190]]

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

General Level of Protection

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

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

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

[[Page 31191]]

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

Restrictions Within the United States

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

[[Page 31192]]

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

Notifications

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

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

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

[[Page 31193]]

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

[[Page 31194]]

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

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

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

Clarification of What Imports Are Not Authorized

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

[[Page 31195]]

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

Process for Removing a Taxon From the NAPPRA Lists

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

[[Page 31196]]

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

[[Page 31197]]

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

Importation of NAPPRA Taxa Under Departmental Permits

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

[[Page 31198]]

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

Seed

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

[[Page 31199]]

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

[[Page 31200]]

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

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

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

Relationship of the Current Regulations to the NAPPRA Category

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

[[Page 31201]]

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

Economic Issues

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

[[Page 31202]]

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

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

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

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

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

[[Page 31203]]

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

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

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

Other Measures To Address the Risk of Importing Plants for Planting

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

Mandatory Treatment

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

[[Page 31204]]

    In part due to the fact that plants for planting are now imported 
in large quantities for immediate sale to U.S. consumers, imported 
plants for planting are no longer routinely fumigated with methyl 
bromide or otherwise treated as a condition of entry; the adverse 
effects of fumigating plants for planting with methyl bromide are quite 
severe, which means that importing plants for planting for immediate 
sale to U.S. consumers would be impractical if fumigation were 
required.
    We will not resume routine fumigation with methyl bromide. Under 
the Montreal Protocol and Subchapter VI of the Clean Air Act (42 U.S.C. 
7671-7671p), the United States is obligated to minimize its use of 
substances such as methyl bromide that deplete stratospheric ozone. In 
addition, Article 2 of the WTO SPS Agreement requires that any 
restrictions APHIS imposes on the importation of plants for planting to 
be based on scientific principles and not maintained without sufficient 
scientific evidence; as mentioned previously, routine fumigation was 
conducted regardless of whether there was evidence that the plants for 
planting offered for importation could serve as a pathway for the 
introduction of a quarantine pest.
    We would consider imposing a routine disinfestation requirement in 
the future if a treatment becomes available that is effective and does 
not have the potential for significant impacts on the human 
environment, and if we determine that such a requirement is necessary 
to achieve a more appropriate level of protection against the risk 
posed by the importation of plants for planting.

Inspections

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

[[Page 31205]]

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

Identification

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

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

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

[[Page 31206]]

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

Postentry Quarantine

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

Risk-Mitigating Production Practices

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

Other Strategies

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

[[Page 31207]]

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

Miscellaneous Changes

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

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

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

Executive Order 12988

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

Executive Order 13175

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

Paperwork Reduction Act

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

[[Page 31208]]

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

E-Government Act Compliance

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

List of Subjects in 7 CFR Part 319

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

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

PART 319--FOREIGN QUARANTINE NOTICES

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

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

Subpart--Plants for Planting 1 2
---------------------------------------------------------------------------

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

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


Sec.  319.37  [Amended]

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

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


Sec.  319.37-1  Definitions.

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


Sec.  319.37-2  [Amended]

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

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


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

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

[[Page 31209]]

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


Sec.  319.37-4  [Amended]

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


Sec.  319.37-5  [Amended]

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


Sec.  319.37-7  [Amended]

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


Sec.  319.37-8  [Amended]

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

[[Page 31210]]

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


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

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


Sec.  319.37-13  [Amended]

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

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