This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

71736

Vol. 69, No. 237

Friday, December 10, 2004

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319

[Docket No. 03–069–1] 

RIN 0579–AB85

Nursery Stock Regulations

AGENCY: Animal and Plant Health 

Inspection Service, USDA.

ACTION: Advance notice of proposed 

rulemaking and request for comments. 

SUMMARY: We are soliciting public 

comment on whether and how we 

should amend the regulations that 

govern the importation of nursery stock, 

also known as plants for planting. 

Under the current regulations, all plants 

for planting are allowed to enter the 

United States if they are accompanied 

by a phytosanitary certificate and if they 

are inspected and found to be free of 

plant pests, unless their importation is 

specifically prohibited or further 

restricted by the regulations. We are 

considering several possible changes to 

this approach, including establishing a 

category in the regulations for plants for 

planting that would be excluded from 

importation pending risk evaluation and 

approval; developing ongoing programs 

to reduce the risk of entry and 

establishment of quarantine pests via 

imported plants for planting; combining 

existing regulations governing the 

importation of plants for planting into 

one subpart; and reevaluating the risks 

posed by importation of plants for 

planting whose importation is currently 

prohibited. We are also considering how 

to best collect data on current imports 

of plants for planting so we can 

accurately ascertain the volume, type, 

and origin of such plants entering the 

United States. We are soliciting public 

comment on these issues to help us 

determine what changes we should 

propose to improve our regulations and 

which of these changes should be 

assigned the highest priority for 

implementation.

DATES: We will consider all comments 

that we receive on or before March 10, 

2005.

ADDRESSES: You may submit comments 

by any of the following methods: 

• EDOCKET: Go to http://

www.epa.gov/feddocket to submit or 

view public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. Once you have 

entered EDOCKET, click on the ‘‘View 

Open APHIS Dockets’’ link to locate this 

document. 

• Postal Mail/Commercial Delivery:

Please send four copies of your 

comment (an original and three copies) 

to Docket No. 03–069–1, Regulatory 

Analysis and Development, PPD, 

APHIS, Station 3C71, 4700 River Road 

Unit 118, Riverdale, MD 20737–1238. 

Please state that your comment refers to 

Docket No. 03–069–1. 

• E-mail: Address your comment to 

regulations@aphis.usda.gov. Your 

comment must be contained in the body 

of your message; do not send attached 

files. Please include your name and 

address in your message and ‘‘Docket 

No. 03–069–1’’ on the subject line. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the instructions for locating this docket 

and submitting comments. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming.

Other Information: You may view 

APHIS documents published in the 

Federal Register and related 

information, including the names of 

groups and individuals who have 

commented on APHIS dockets, on the 

Internet at http://www.aphis.usda.gov/

ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. 

Arnold T. Tschanz, Senior Staff Officer, 

Regulatory Coordination, PPQ, APHIS, 

4700 River Road Unit 141, Riverdale, 

MD 20737–1236; (301) 734–5306.

SUPPLEMENTARY INFORMATION: 

Background 

Scope and Approach of the Current 

Regulations 

Under the Plant Protection Act (7 

U.S.C. 7701–7772), plant pest is defined 

as: ‘‘Any living stage of any of the 

following that can directly or indirectly 

injure, cause damage to, or cause 

disease in any plant or plant product: A 

protozoan, a nonhuman animal, a 

parasitic plant, a bacterium, a fungus, a 

virus or viroid, an infectious agent or 

other pathogen, or any article similar to 

or allied with any of the these articles.’’ 

The Plant Protection Act defines 

noxious weed as: ‘‘Any plant or plant 

product that can directly or indirectly 

injure or cause damage to crops 

(including nursery stock or plant 

products), livestock, poultry, or other 

interests of agriculture, irrigation, 

navigation, the natural resources of the 

United States, the public health, or the 

environment.’’ Under the Plant 

Protection Act, the Secretary of 

Agriculture is authorized to undertake 

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 or spread of plant pests 

and noxious weeds. The regulations 

contained in ‘‘Subpart—Nursery Stock, 

Plants, Roots, Bulbs, Seeds, and Other 

Plant Products,’’ §§ 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 

or capable of propagation. (The 

regulations in 7 CFR part 360, ‘‘Noxious 

Weed Regulations,’’ contain restrictions 

on the movement of noxious weed 

plants or plant products listed in that 

part into or through the United States 

and interstate; the importation of some 

plants and seeds is subject to both the 

nursery stock regulations and the 

noxious weed regulations.) To refer to 

the articles subject to the nursery stock 

regulations collectively in this 

document, we will use the term plants 

for planting, which the International 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 71737

Plant Protection Convention defines as: 

‘‘Living plants and parts thereof, 

including seeds and germplasm, 

intended to remain planted, to be 

planted, or to be replanted to ensure 

their subsequent growth, reproduction 

or propagation.’’ This definition 

matches the scope of the articles subject 

to the nursery stock regulations. 

APHIS’ nursery stock regulations 

prohibit or restrict the importation of 

certain taxa of plants for planting that 

pose a risk of introducing plant pests of 

quarantine concern (referred to below as 

quarantine pests) into the United States. 

We use the word taxon (plural: taxa) in 

this document to refer to any grouping 

within botanical nomenclature, such as 

family, genus, species, or cultivar. A 

quarantine pest is defined by the 

International Plant Protection 

Convention as: ‘‘A pest of potential 

economic importance to the area 

endangered thereby and not yet present 

there, or present but not widely 

distributed and being officially 

controlled.’’ (In this definition, pest

includes ‘‘any species, strain or biotype 

of plant, animal or pathogenic agent 

injurious to plants or plant products.’’) 

Plants for planting that APHIS has 

determined cannot be feasibly 

inspected, treated, or handled to prevent 

quarantine pests that may accompany 

them from being introduced into the 

United States are listed in the 

regulations as prohibited articles. 

Prohibited articles may not be imported 

into the United States, unless imported 

by the U.S. Department of Agriculture 

(USDA) for experimental or scientific 

purposes under specified safeguards. 

Plants for planting that APHIS has 

determined can be inspected, treated, or 

handled to prevent quarantine pests that 

may accompany them from being 

introduced into the United States are 

listed in the regulations as restricted 

articles. Restricted articles may be 

imported into the United States if they 

are imported in compliance with 

conditions that may include permit and 

phytosanitary certificate requirements, 

inspection, treatment, postentry 

quarantine, or combinations of these 

safeguards. 

Finally, under the regulations in 

§ 319.37–14(a), plants for planting that 

are required to be imported under a 

written permit under § 319.37–3(a)(1) 

through (a)(6) may be imported or 

offered for importation only at a Federal 

plant inspection station. Such stations 

are designated by asterisks in the list of 

ports of entry in § 319.37–14(b). Plants 

for planting offered for importation at a 

Federal plant inspection station are 

inspected and, if necessary, treated 

before being allowed entry into the 

United States. All other plants for 

planting whose importation is restricted 

by the regulations must be presented for 

inspection and may be inspected and 

treated, if necessary, at any of the ports 

listed in § 319.37–14(b) or, in certain 

limited cases, at another Customs 

designated port of entry. 

The importation of plants for planting 

is further restricted or prohibited if 

there is specific evidence that such 

importation could introduce a 

quarantine pest into the United States. 

If we have reason to believe that the 

importation of a currently admissible 

taxon of plants for planting may pose a 

risk of introducing a quarantine pest, a 

pest risk assessment (PRA) is completed 

to examine the available evidence on 

the subject; if the PRA indicates that the 

risk posed by the importation of the 

taxon warrants restrictions on or the 

prohibition of its importation, we 

undertake rulemaking to amend the 

regulations to impose the necessary 

restrictions or prohibition. 

We estimate that plants for planting 

from representative species of more than 

2,000 genera are being imported or have 

been imported in the past. Most of the 

taxa of plants for planting currently 

being imported have not been 

thoroughly studied to determine 

whether their importation presents a 

risk of introducing a quarantine pest 

into the United States. We typically rely 

on inspection at a Federal plant 

inspection station or port of entry to 

mitigate the risks of pest introduction 

associated with the importation of these 

taxa. 

Conditions of Importation When the 

Regulations Were Established 

When the regulations were originally 

established, we believed that most taxa 

of plants for planting could be imported 

safely without such thorough study, as 

the volume and types of plants for 

planting that were imported and the 

phytosanitary conditions of their 

importation were significantly different 

than they are today. Typically, the 

permits we issued for the importation of 

plants for planting limited such 

importation to either seed or, for 

cultivars that could not be propagated 

by seed, small amounts of plant material 

(usually 100 or fewer plants). The intent 

was to limit the number of plants for 

planting imported to the minimum 

necessary to establish a specific species 

or cultivar within the United States. The 

plants for planting that were then 

imported were thus not intended for 

immediate sale to U.S. consumers; these 

imported species or cultivars were only 

sold to U.S. consumers after they had 

been established and propagated for sale 

within the United States. As such, 

importation of living plant material was 

limited to species or cultivars that were 

not grown in the United States and 

would not breed true from seed or were 

difficult to establish from seed. Thus, 

both the quantity of living plant 

material and the number of types of 

plants for planting that were imported 

into the United States were originally 

very limited. 

In addition, when the regulations 

were originally established, all plants 

for planting that were imported into the 

United States were required to be 

fumigated with methyl bromide or 

otherwise treated for insect pests as a 

condition of entry. Fumigation with 

methyl bromide often has a severe 

adverse effect on plants for planting in 

consignments offered for importation 

into the United States; however, since 

the plants for planting were being 

imported to establish specific species or 

cultivars, the adverse effects were not a 

concern as long as enough plants for 

planting survived the treatment to allow 

for such establishment. Treatment was 

mandatory and was performed 

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 arthropod pest. Because 

these pests were eliminated by 

fumigation, the regulations were mainly 

intended to prevent the introduction of 

pathogens that fumigation could not 

control and that were associated with 

imported plants for planting. When it 

was determined that the entry of a 

certain taxon of plants for planting 

could introduce a pathogen into the 

United States, regulations were 

established that prohibited the entry of 

that taxon, as listed in § 319.37–2, or 

prescribed specific phytosanitary 

mitigation conditions, as specified in 

the regulations in §§ 319.37–3 through 

319.37–8 or in departmental permit 

conditions, that would eliminate the 

pathogen or allow APHIS inspectors to 

determine that it was not present in the 

plants for planting offered for 

importation. These circumstances 

prevailed from the first years after the 

regulations were established until the 

1970s.

Problems for the Regulations Posed by 

Recent Trends in the Importation of 

Plants for Planting 

While allowing the importation of 

most taxa of plants for planting with few 

restrictions may have been a reasonable 

course of action when the regulations 

were established, the circumstances of 

the importation of plants for planting 

have since changed greatly. APHIS no 

71738 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

1More information on the volume of imports of 

seed and other plants for planting can be found in 

the Foreign Agricultural Service’s U.S. Trade 

Internet System at http://www.fas.usda.gov/ustrade.

2 ‘‘Safeguarding American Plant Resources: A 

Stakeholder Review of the APHIS–PPQ 

Safeguarding System,’’ National Plant Board. July 

1999. Text available at http://www.aphis.usda.gov/

ppq/safeguarding/.

longer limits the number of plants for 

planting that may be imported to the 

amount necessary to establish a species 

or cultivar in the United States, 

primarily due to industry requests to 

import large amounts of commercial 

plants for planting for immediate sale to 

U.S. consumers rather than for further 

cultivation within the United States. (As 

mentioned above, limits on the number 

of plants for planting had been imposed 

through the permitting process rather 

than through the regulations governing 

the importation of plants for planting.) 

Since this change was made, 

importation of plants for planting has 

steadily increased, as producers have 

found that many plants for planting can 

be grown in other countries under more 

favorable conditions than those 

available in the United States. In 

addition, many importers have found 

that there is a large domestic market for 

new and rare taxa of plants for planting, 

further driving increases in the number 

of taxa imported, the number of foreign 

areas from which plants for planting are 

imported, and the overall volume of 

imported plants for planting. 

These increases are reflected in all the 

data available to us. For example, the 

Federal plant inspection station at 

Miami International Airport handles 

about 76 percent of all plants for 

planting that are offered for importation 

into the United States. Between fiscal 

year 1995 and fiscal year 2002, the total 

number of plant shipments imported 

through that inspection station almost 

doubled, the number of plants imported 

through that inspection station 

increased by 250 percent, and the 

number of quarantine pests found in 

those shipments increased by 275 

percent. While, as noted above, 

importation of plants for planting was at 

one time limited to 100 articles of any 

given taxon, over 1 million apple 

rootstocks per year were imported 

through various ports of entry into the 

State of Washington alone in the early 

1990s. The overall volume of imports of 

field crop, grass, and garden seed for 

sowing has doubled between 1995 and 

2002, to 332,538 metric tons.1 The 

recent increases in the volume of 

imports of plants for planting have been 

dramatic.

In part due to the fact that plants for 

planting are now imported 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; as noted previously 

in this document, the adverse effects 

resulting from the fumigation of 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. 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 

World Trade Organization Agreement 

on the Application of Sanitary and 

Phytosanitary Measures requires that 

any restrictions APHIS imposes on the 

importation of plants for plants be based 

on scientific principles and is 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. 

As noted previously, the only 

remaining restriction on the importation 

of most shipments of plants for planting 

is that they must enter the United States 

through a Federal plant inspection 

station, at which the plants for planting 

are randomly sampled and visually 

inspected for quarantine pests. 

However, this inspection may not 

always provide an adequate level of 

protection against quarantine pests, 

particularly if the pest is rare, small in 

size, borne within the plant, an 

asymptomatic plant pathogen, or not yet 

recognized and regulated as a 

quarantine pest. 

Appropriately mitigating the risks of 

quarantine pest introduction associated 

with the importation of plants for 

planting is especially important because 

quarantine pests introduced via 

imported plants for planting are much 

more likely to become established than 

quarantine pests introduced via other 

imported articles, such as fruits and 

vegetables. The introduced plants for 

planting themselves may serve as hosts 

for quarantine pests for months or years, 

while the shelf life of most fruits and 

vegetables is days or weeks. In addition, 

the destinations of imported plants for 

planting, such as plant nurseries, farms, 

greenhouses, orchards, and gardens, are 

likely to be favorable environments for 

plant growth and pest development in 

general, which could present problems 

in the event that a taxon of imported 

plants for planting turns out to be a 

carrier of a pathogen or pest or is itself 

an invasive plant warranting further 

consideration as a noxious weed. Other 

host material for quarantine pests is also 

usually abundant in the environment 

surrounding imported plants for 

planting. Under these circumstances, 

the introduction of even a few 

individuals of a quarantine pest via 

imported plants for planting may lead to 

the establishment of that pest in the 

United States. 

In addition, concern has grown in 

recent years among national plant 

protection organizations (NPPOs), State 

plant protection organizations, and 

members of the plants for planting 

industry and the scientific community 

that there may be many little-known 

quarantine pests that could be 

introduced into the United States via 

the importation of plants for planting or 

by other articles. In many countries, 

research capabilities are limited due to 

a shortage of funds for research as well 

as a shortage of trained weed scientists, 

entomologists, plant pathologists, and 

nematologists. Given this shortage, 

NPPOs in these countries are likely to 

concentrate their limited research 

capabilities on studying crops of local 

economic importance. Such crops are 

mostly agronomic crops and fruits and 

vegetables grown for domestic 

consumption or export; non-agronomic 

or ornamental plants are less likely to be 

studied for possible pest risks. 

Therefore, quarantine pests of plants for 

planting in these countries are generally 

not well known. If research is done on 

potential pests, it may not be readily 

available to the international 

community. Resources in many 

countries, particularly developing 

countries, may also be concentrated on 

locally serious pest problems that may 

not be of quarantine concern to the 

United States; conversely, pests that 

would be of concern to us if they were 

to be introduced via the importation of 

plants for planting may not be 

considered a significant problem in 

other countries. In addition, pests that 

may not have serious consequences in 

one environment may pose great risks in 

another, and the conditions that 

increase the risk posed by pests can be 

difficult to predict. 

Recommendations of the Safeguarding 

Report With Regard to Plants for 

Planting 

The National Plant Board’s 1999 

‘‘Safeguarding American Plant 

Resources’’ report 2 (referred to below as 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 71739

the Safeguarding Report) contrasted the 

approach of the regulations governing 

the importation of plants for planting 

with the approach of the regulations 

governing the importation of fruits and 

vegetables, which are found in 

‘‘Subpart—Fruits and Vegetables’’

(§§ 319.56 through 319.56–8) within 7 

CFR part 319. While quarantine pests 

that enter the United States via 

imported fruits and vegetables are less 

likely to become established than 

quarantine pests that enter the United 

States via imported plants for planting, 

many of the other problems associated 

with the importation of plants for 

planting, such as a lack of research or 

information concerning the plant pests 

that may be associated with an article, 

can be an issue in the importation of 

fruits and vegetables as well.

However, the importation of fruits 

and vegetables is generally prohibited 

under the regulations in ‘‘Subpart—

Fruits and Vegetables,’’ and the 

importation of a fruit or vegetable is 

only allowed if sufficient information is 

available to prove that its importation is 

safe. The process of allowing the 

importation of a fruit or vegetable from 

a particular area or country begins when 

APHIS receives an import request from 

an importer or an exporting country or 

when there is a request to reconsider the 

entry status of a commodity previously 

denied entry. If the request is for a fruit 

or vegetable for which no previous entry 

decision has been made, or if new 

evidence indicates that the previous 

entry decision may no longer be 

applicable, then a PRA is performed to 

determine the sources of pest risk 

associated with the requested 

importation. The fruit or vegetable is 

only allowed to be imported if the PRA 

indicates that the risk can be effectively 

mitigated and if notice-and-comment 

rulemaking to allow the importation is 

successfully completed. In other words, 

all commodities whose importation is 

governed by ‘‘Subpart—Fruits and 

Vegetables’’ are prohibited from 

importation pending risk evaluation and 

approval.

By contrast, as described above, the 

nursery stock regulations do not require 

that a PRA be completed prior to the 

importation of a new taxon of plants for 

planting or prior to the taxon’s 

importation from a new area; most 

plants for planting are allowed to be 

imported after visual inspection at a 

Federal plant inspection station or port 

of entry. APHIS can take administrative 

action to prohibit or restrict the entry or 

subsequent interstate movement of a 

taxon of plants for planting under the 

Plant Protection Act if it poses an 

immediate danger of introducing or 

spreading a plant pest or noxious weed 

in the United States; in such an 

emergency situation, rulemaking may be 

completed after the prohibition or 

restrictions are imposed. However, in 

routine situations, the entry of a taxon 

of plants for planting is only prohibited 

or restricted after a PRA and subsequent 

notice-and-comment rulemaking are 

completed. This difference between the 

regulatory approaches for plants for 

planting and for fruits and vegetables 

means that the risks associated with the 

importation of specific taxa of plants for 

planting are generally much less well 

known than the risks associated with 

the importation of taxa of fruits and 

vegetables under the regulations in 7 

CFR part 319. 

As the Safeguarding Report states, the 

regulations’ current approach to 

restricting the importation of plants for 

planting ‘‘is based solely on known pest 

and disease problems of the plants on 

the established lists [of prohibited and 

restricted articles]. Everything is 

admissible unless specifically listed as 

restricted or prohibited. This assumes 

there is no risk associated with the 

unknown, an alarming assumption 

given the resources at stake and the 

quality of information available.’’ It can 

be assumed that some taxa of plants for 

planting that are presently being 

imported pose risks of introducing 

quarantine pests that are currently 

unknown to us; as the Safeguarding 

Report states, ‘‘new species of plant that 

have not been subjected to risk 

assessment can enter channels of trade 

with no regulation. Since these are not 

listed, they are by default admissible 

and subject to the least stringent 

protocol regardless of their potential to 

carry pests or diseases, or become 

invasive themselves.’’

As the importation of plants for 

planting has increased dramatically over 

the last decade, there has not been a 

commensurate increase in available 

resources to determine the number and 

distribution of pests that could be 

introduced via imported plants for 

planting, to initiate PRAs, and, when 

necessary, to amend the regulations to 

address risks presented by quarantine 

pests and noxious weeds after their 

importation. A significant number of 

pests that could be introduced to the 

United States via imports of plants for 

planting need to be evaluated for 

quarantine significance, but their 

evaluation has been delayed by this lack 

of resources. Although we have been 

able to initiate rulemaking to mitigate 

risks posed by certain exotic pests, in 

general our ability to quickly apply new 

scientific research and information has 

been hampered by this lack of resources. 

These conditions are believed to have 

led to several pest introductions in 

recent years. For example, articles of 

Pelargonium spp. that were 

contaminated with Ralstonia 

solanacearum race 3 biovar 2, a 

bacterium that is listed in our 

regulations in 7 CFR 331.3(a) as an agent 

capable of posing a severe threat to 

plant health or plant products, have 

been imported into the United States 

multiple times, most recently in 

February 2003. In the February 2003 

outbreak, contaminated articles of 

Pelargonium spp. were imported from 

both Guatemala and, subsequently, 

Kenya. The articles were required to be 

inspected at the port of entry, but at the 

time of their importation they may not 

have been showing symptoms of the 

wilt disease that R. solanacearum race 

3 biovar 2 causes in geraniums. The 

bacterium was eradicated in greenhouse 

plants before it could become 

established in the U.S. environment, 

where it could have severely affected 

the U.S. potato crop; more than 2.1 

million plants at 471 greenhouses 

throughout the United States were 

destroyed as part of the eradication 

effort. The eradication effort was costly 

to APHIS, State plant health authorities, 

and the U.S. plants for planting 

industry. In response to this outbreak, 

we amended the regulations by 

establishing requirements at § 319.37–

5(r) for the importation of articles of 

Pelargonium spp. and Solanum spp., 

two hosts of the bacterium. However, it 

would have been preferable to establish 

regulations, including conditions of 

entry, that would have allowed us to 

avoid the outbreak entirely. 

The factors described above led the 

National Plant Board to recommend in 

the Safeguarding Report that the plants 

for planting regulations be revised to 

better protect U.S. plant resources from 

quarantine pests. Specifically, the 

Safeguarding Report recommended that 

APHIS: 

• Review the plants for planting 

regulations for conformance with the 

Plant Protection Act and adherence to 

international standards for quarantine 

regulations (recommendation E–2); 

• Develop a strategy of quarantine 

development tied to pest risk potential 

that is reasonable, enforceable, and 

transparent (recommendation E–3); 

• Begin its quarantine revision 

process with the revision of the fruits 

and vegetables and plants for planting 

quarantine regulations 

(recommendation E–4): 

• Consider adopting a modified 

‘‘clean list’’ approach for propagative 

material, specifying what is permissible 

subsequent to risk assessment, rather 

71740 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

than the current ‘‘dirty list’’ approach 

that prohibits or restricts specific 

articles only (recommendation E–46); 

and 

• Purge lists of ‘‘phantom diseases,’’

like the rose wilt virus, that are not 

recognized by the scientific community 

(recommendation E–48). 

In response to these 

recommendations, this advance notice 

of proposed rulemaking solicits public 

comment on five measures we are 

considering as part of an effort to revise 

the regulations. We believe these 

measures, taken together, would enable 

APHIS to provide a more appropriate 

level of protection against the risk of 

introduction of quarantine pests via 

imported plants for planting than the 

current regulations provide. The 

measures we are considering are: (1) 

Collecting data on the current 

importation of taxa of plants for 

planting; (2) establishing a new category 

for certain taxa of plants for planting 

that would be excluded from 

importation pending risk evaluation and 

approval; (3) establishing programs to 

reduce the risk of importation and 

establishment of quarantine pests; (4) 

combining existing regulations 

governing the importation of plants for 

planting; and (5) reevaluating taxa 

whose importation is currently 

prohibited. These measures are 

described in more detail below. 

Collecting Data on the Current 

Importation of Taxa of Plants for 

Planting 

To effectively determine what 

changes may need to be made to the 

regulations and the possible impact of 

those changes, we must have accurate 

and complete data regarding the 

volume, types, and origin of plants for 

planting that are currently being 

imported into the United States. We do 

not currently have such data. 

Although the regulations in § 319.37–

4 require that all imported plants for 

planting must be accompanied by a 

phytosanitary certificate, the 

phytosanitary certificates accompanying 

these articles often do not contain the 

data we would need to evaluate current 

imports of plants for planting. 

Currently, importers are not required to 

provide the scientific name or even the 

genus of the plants for planting being 

imported on the phytosanitary 

certificate, and several genera may be 

included in one broad category (such as 

‘‘tropical foliage’’) on the certificate, 

although we anticipate amending the 

regulations to require that importers 

provide genus and species information. 

In addition, estimates of the volume of 

imports derived from phytosanitary 

certificates may not be reliable. 

The Foreign Agricultural Service 

(FAS) reports data on imports of plants 

for planting into the United States 

according to certain categories 

developed by FAS, and these data are 

generally considered to accurately 

indicate the volume of trade in any 

given category. However, the categories 

FAS uses typically include many genera 

of plants for planting, meaning that the 

FAS data also do not provide the 

detailed information about imports of 

plants for planting that we need.

We are considering what sources to 

use to acquire data regarding the 

volume, types, and origin of plants for 

planting that are currently being 

imported into the United States and 

how to use those sources. APHIS 

records could provide some of the data, 

although, as noted above, there are gaps 

in APHIS’ data set. We could ask 

importers to provide data on the 

volume, types, and origin of past and 

present importations of plants for 

planting. Other potential data sources 

we identified include professional 

societies, horticultural groups, trade 

groups, businesses, researchers, 

universities, arboretums, and 

individuals. We are also considering 

making changes to the regulations that 

would allow us to more easily obtain 

such data; for example, we could 

require that, for any consignment of 

plants for planting offered for 

importation into the United States, the 

importer provide or the phytosanitary 

certificate include the quantity in which 

the plants for planting are being offered. 

Once we collect the data, we would 

analyze the information to determine 

what taxa of plants for planting are 

already being imported in significant 

amounts. This would allow us to make 

better informed decisions about 

whatever changes to the regulations may 

be necessary. 

We invite responses to the following 

questions in particular on the data 

collection activities we are considering: 

1. Are there any sources other than 

those listed above from which we 

should solicit or obtain data? 

2. What should we do to ensure that 

the data we receive accurately reflect 

actual importations of plants for 

planting? 

3. What are the taxa or types of plants 

for planting for which obtaining 

accurate data might be especially 

difficult? 

Establishing a New Category for Certain 

Taxa of Plants for Planting That Would 

Be Excluded From Importation Pending 

Risk Evaluation and Approval 

As described above under the heading 

‘‘Scope and Approach of the Current 

Regulations,’’ the regulations currently 

either prohibit the importation of plants 

for planting, allow the importation of 

plants for planting subject to specific 

restrictions such as additional 

declarations on phytosanitary 

certificates or postentry quarantine, or 

allow the importation of plants for 

planting subject to general restrictions 

such as phytosanitary certificates and 

inspection at a Federal plant inspection 

station or port of entry. We plan to 

retain these categories in the regulations 

for plants for planting. We are 

considering adding an additional 

category for certain taxa of plants for 

planting that would be excluded from 

importation pending risk evaluation and 

approval. These taxa would be listed in 

the regulations under a heading separate 

from the prohibited and restricted 

articles. 

A taxon excluded from importation 

pending risk evaluation and approval 

could be removed entirely from the list 

if a PRA was completed and the PRA 

indicated that the taxon could be 

imported safely. The PRA would 

identify any phytosanitary mitigation 

measures that might be necessary for 

plants for planting of the taxon to be 

imported safely; we would then amend 

the regulations through notice-andcomment rulemaking to require those 

measures. 

While a taxon is excluded from 

importation pending risk evaluation and 

approval, we would allow it to be 

imported into the United States if the 

producer that wishes to export the taxon 

to the United States is participating in 

an approved clean stock program. We 

would additionally allow the 

importation of small quantities of such 

a taxon under the conditions of a best 

management practices program so that it 

could be tested within the United 

States. We would establish a permit 

system to allow and control such 

importation. (The clean stock and best 

management practices programs are 

another measure we are considering to 

improve the effectiveness of the 

regulations. Both programs would be 

designed to mitigate the risks posed by 

all types of plant pests, not just the 

specific plant pests a PRA would 

identify and address. They are 

discussed in more detail below under 

the heading ‘‘Programs To Reduce the 

Risk of Importation and Establishment 

of Quarantine Pests.’’) Thus, under the 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 71741

plan we are considering, the exclusion 

of taxa of plants for planting listed in 

this category would not be total, nor 

would it necessarily be permanent. 

We are considering two possible 

options for determining which taxa of 

plants for planting would be added to 

this category. In the first option, taxa of 

plants for planting that are currently 

being imported in significant amounts 

and whose importation is subject to 

general restrictions in the regulations 

would, in most cases, be presumed to be 

safe and would not be excluded from 

importation pending risk evaluation and 

approval. (We would determine which 

taxa are currently being imported in 

significant amounts by analyzing the 

importation data we are interested in 

collecting, as described below under the 

heading ‘‘Collecting Data on the Current 

Importation of Taxa of Plants for 

Planting.’’) All taxa of plants for 

planting that are not currently being 

imported in significant amounts would 

then be excluded pending risk 

evaluation and approval. 

This first option would allow the 

continued importation of taxa of plants 

for planting that are being imported in 

significant amounts because the risks 

associated with such taxa are generally 

better known than the risks associated 

with taxa that are being imported in 

smaller amounts. In general, the risks 

associated with taxa of plants for 

planting that have not previously been 

imported into the United States, in 

small quantities, or from different areas 

than those from which they have 

previously been imported are the least 

well-known risks associated with plants 

for planting; thus, these are the plants 

for planting that we would want to 

exclude pending risk evaluation and 

approval. For example, if a taxon is 

being imported in significant amounts, 

it is more likely that some study of its 

potential risks has been undertaken in 

either the exporting country or the 

United States. In addition, inspectors 

have more experience with taxa of 

plants for planting that are being 

imported in significant amounts, and 

thus can better recognize potential risks 

associated with such plants for planting 

than may be possible with taxa that are 

being imported in smaller amounts. If 

other evidence, such as a PRA or 

evidence required by the second option 

that is described below, indicated that a 

taxon of plants for planting that was 

currently being imported in significant 

amounts could introduce a quarantine 

pest, we would reserve the right to 

restrict or prohibit its importation, 

perhaps by excluding it pending risk 

evaluation and approval. 

In accordance with the above 

information, with regard to this option, 

we are considering whether to treat a 

taxon of plants for planting that is being 

imported in significant quantities from 

one area but is not being imported in 

significant quantities from another area 

as two separate taxa for the purposes of 

exclusion pending risk evaluation and 

approval. For example, a taxon that is 

currently being imported in significant 

quantities from Africa but has never 

been imported from Asia may pose 

different pest risks when it is imported 

from the new area and therefore could 

be excluded pending risk evaluation 

and approval. 

However, the first option has some 

potential problems. If this option were 

implemented without also increasing 

the resources available to us for 

conducting and completing PRAs, the 

volume of requests for importation of 

new taxa of plants for planting would 

likely overwhelm our ability to evaluate 

the new taxa for possible risk in a timely 

manner. In addition, since we do not 

currently have detailed data on what 

taxa of plants for planting are being 

imported into the United States, 

implementation of this approach would 

take some time. 

In the second option that we are 

considering, we would exclude taxa of 

plants for planting from importation 

pending risk evaluation and approval 

when evidence other than a PRA was 

available that indicated either that the 

importation of the plant could introduce 

a quarantine pest into the United States 

or that the plant itself could be a 

quarantine pest or a noxious weed. 

Evidence used in such an evaluation 

would be drawn from sources such as 

scientific literature, government reports, 

professional organizations, and 

international databases. We would 

publish criteria regarding the sources of 

information that could be used and the 

volume of evidence that would be 

necessary to exclude a taxon. We 

anticipate that most taxa of plants 

presently being imported in significant 

amounts would continue to be allowed 

to be imported under the second option, 

although, for reasons discussed above 

under the heading ‘‘Collecting Data on 

the Current Importation of Taxa of 

Plants for Planting,’’ we lack the data to 

make a definite prediction on this 

subject. 

Although under this option, taxa of 

plants for planting would be added to 

this category through notice-andcomment rulemaking, removing the 

obligation to complete a PRA before 

such rulemaking could be initiated 

would allow us to respond more quickly 

when other evidence indicates that the 

importation of certain taxa of plants for 

planting could pose a risk of 

introducing quarantine pests into the 

United States. Because it would require 

fewer resources to exclude a taxon 

pending risk evaluation and approval 

under this option than conducting a 

PRA in order to prohibit or restrict a 

taxon’s importation does under the 

current regulations, the second option 

could be implemented with the 

resources presently available; however, 

it would be more effective if additional 

resources were available to search for 

and evaluate available information.

The two options for adding taxa of 

plants for planting to the category of 

excluded pending risk evaluation and 

approval could be combined to some 

extent. If the options were combined 

and implemented, taxa of plants for 

planting that are currently being 

imported in significant quantities but 

whose importation poses an uncertain 

risk of introducing quarantine pests into 

the United States could still be excluded 

from importation pending risk 

evaluation and approval if evidence 

other than a PRA supported such an 

exclusion. For example, a taxon that is 

currently being imported but which an 

importer wishes to import from a 

different area than the area from which 

it is currently being imported could be 

placed in the category of excluded 

pending risk evaluation and approval if 

we had evidence that a quarantine pest 

existed in the new area. 

We invite responses to the following 

questions in particular on the ‘‘excluded 

pending risk evaluation and approval’’

category we are considering: 

1. How would each of the two options 

for adding taxa of plants for planting to 

this category affect the sectors of the 

horticultural industry that propagate 

and sell imported plants for planting? 

Which option would disrupt current 

trade in plants for planting the least? 

2. If the first option were 

implemented, what should constitute a 

‘‘significant’’ amount for taxa of plants 

for planting that are already being 

imported? 

3. If the second option were 

implemented, what sources of 

information and what minimum criteria 

should be used to determine whether a 

specific taxon should be excluded 

pending risk evaluation and approval? 

4. Should taxa of plants for planting 

imported from different regions be 

considered separate regulated articles 

for the purposes of this category? For 

example, if a taxon is currently being 

imported in significant quantities from 

Africa but has never been imported from 

Asia, should imports of this taxon from 

71742 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

3See http://www.fleppc.org/FNGA/St.Louis.htm

for more information on the Workshop and text of 

the Draft Voluntary Codes of Conduct.

4The International Organization for 

Standardization develops and codifies standard 

production methods and quality control procedures 

(such as the ISO 9000 standards) for a variety of 

industries.

Asia be excluded pending risk 

evaluation and approval? 

Programs To Reduce the Risk of 

Importation and Establishment of 

Quarantine Pests 

The regulations currently contain a 

few programs that prescribe procedures 

for growing establishments in foreign 

countries that wish to export plants for 

planting to the United States. For 

example, § 319.37–4(c) describes a 

voluntary program for greenhousegrown plants from Canada that includes 

requirements for identification of 

exported plants, recordkeeping, 

shipping, and pest management 

practices; if growers in Canada 

participate in this program, their plants 

may be offered for importation into the 

United States without a phytosanitary 

certificate. Under § 319.37–5(b), to 

prevent the introduction of certain 

pathogens of fruit trees into the United 

States, exporters of various plants for 

planting in Belgium, Canada, Germany, 

France, Great Britain, or the Netherlands 

must present phytosanitary certificates 

with an additional declaration that the 

NPPO of the exporting country had 

examined the stock from which the 

plants for planting have been derived 

and found the stock to be free of the 

pathogens of concern. True seed 

(botanical seed) of Solanum tuberosum

imported from Chile under § 319.37–

5(o) must be sampled by the NPPO of 

that country and tested for various 

diseases before being exported; growers 

must also agree to undertake various 

pest management and exclusion 

practices to be eligible to export 

Solanum tuberosum true seed into the 

United States. Certain plants for 

planting may be imported in growing 

media if they meet the conditions in 

§ 319.37–8(e), which include a 

mandatory compliance agreement, 

greenhouse phytosanitary standards, 

growing requirements, and, for some 

articles, treatment and inspection 

requirements. These programs have all 

been effective at excluding quarantine 

pests from shipments of these articles 

that are imported into the United States. 

We are considering establishing 

similar programs that exporters would 

have to participate in if they wished to 

export certain plants for planting to the 

United States. Participants in these 

programs would follow practices that 

would be designed to mitigate the risks 

posed by all pests, whether known or 

unknown to APHIS, that could be 

introduced into the United States via 

imported plants for planting. These 

programs would be broadly divided into 

two types. Clean stock programs would 

establish procedures for foreign 

exporters to ensure through testing that 

the stock from which plants for planting 

are derived is free of disease and to 

exclude pests from the growing 

environment of these plants for 

planting. Best management practices 

programs would allow U.S. importers to 

establish methods of excluding 

quarantine pests from plants for 

planting that importers test for 

propagation or propagate within the 

United States and prevent the 

establishment of those pests in the 

United States, or, if the plants for 

planting themselves appear to be 

potential noxious weeds, to prevent 

their establishment in the United States. 

The regulations in § 319.37–5(b) are an 

example of a clean stock program; the 

Draft Voluntary Codes of Conduct 

developed as part of the Saint Louis 

Declaration, a product of the Workshop 

on Linking Ecology and Horticulture to 

Prevent Plant Invasion held in St. Louis, 

Missouri, in December 2001, are 

collectively an example of a best 

management practices program.3

Clean stock programs could be 

established in countries that wish to 

export plants for planting to the United 

States. Many clean stock-type programs 

already exist in the nursery and 

floriculture industry; some have been 

established independently by industry, 

while others are based on regulatory 

requirements. In general, the clean stock 

programs we envision would have 

several basic elements:

• Production facilities would generate 

plants for planting from propagative 

material that is free or nearly free of 

pests. 

• Production facilities would have an 

International Organization for 

Standardization-like set of standard 

operating procedures that include 

adequate pest control, regular 

inspection and testing, and detailed 

recordkeeping of all aspects of plant 

production, including the origin of 

plants for planting that are eventually 

exported so that they may be traced 

back if necessary.4

• The NPPO of the country in which 

the production facility is located would 

have oversight over the production 

facility and perform regular audits to 

ensure that all elements of the 

production system were in compliance 

with program standards. 

• APHIS would have the ability to 

perform on-site audits of the production 

system as well. APHIS would also 

perform audits upon importation to 

ensure that these plants for planting 

meet the approved standards for the 

clean stock program. Because these 

programs would be designed to exclude 

all pests, the presence of non-quarantine 

pests above established tolerance levels 

could be used as an indication of 

program failure. Such audits could take 

the form of inspections or laboratory 

testing. 

• Penalties and remedial action 

would be required in the case of 

noncompliance. Shipments of plants for 

planting exported under a clean stock 

program would be held or rejected if an 

audit revealed that the plants for 

planting were not grown in compliance 

with the clean stock program. 

These general standards, if adequately 

developed, could be used as a template 

to develop specific regulatory 

approaches. For example, the 

regulations in § 319.37–5(r)(3) that 

govern the importation of articles of 

Pelargonium spp. and Solanum spp. 

from countries where R. solanacearum

race 3 biovar 2 is known to occur were 

developed after we had drafted these 

general guidelines; collectively, the 

requirements in that paragraph satisfy 

the basic elements listed above. We 

believe that, had a clean stock program 

been in place for the importation of 

articles of Pelargonium spp., it would 

have excluded R. solanacearum race 3 

biovar 2 from articles of Pelargonium

spp. imported into the United States. 

While the clean stock programs would 

allow exporters to address pest risk 

before plants for planting are offered for 

importation into the United States, the 

best management practices programs 

would be established so that U.S. 

entities could detect and eliminate 

quarantine pests that may be associated 

with imported plants for planting and 

determine whether an imported plant 

for planting has the potential to become 

a noxious weed. Participants in these 

programs would be domestic producers 

and importers of plants for planting that 

wish to grow small amounts of a taxon 

of plants for planting within the United 

States to determine the taxon’s 

biological and commercial viability, in 

addition to the risks its importation may 

pose. 

The best management practices 

programs would be used within the 

United States to allow the importation 

for testing purposes of small quantities 

of plants and plant parts from taxa that 

were excluded from importation 

pending risk evaluation and approval, 

in tandem with the permit system 

Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 71743

mentioned in the discussion of this 

possible new category. Following the 

best management practices prescribed in 

these programs would greatly reduce the 

risk that any quarantine pest that might 

escape detection and enter the United 

States via the imported plants for 

planting would then become established 

in the United States. In the case that the 

plants for planting themselves proved to 

be noxious weeds, the best management 

practices would also reduce the risk that 

those plants for planting could become 

established in the United States. 

The best management practices 

programs we envision would include 

several basic elements, including: 

• A code of conduct or documented 

standard operating procedures that 

include pest control practices, 

inspection and testing, and 

recordkeeping, similar to that described 

above in the clean stock program; 

• Oversight and audits by a 

professional organization or a State 

agricultural organization to ensure 

compliance with the agreed-upon code 

of conduct or standard operating 

procedures; 

• Some form of Federal oversight; and 

• Penalties and remedial action for 

noncompliance. 

General principles under which these 

programs would operate and 

performance standards these programs 

would have to achieve would be 

specified in the regulations. To develop 

the clean stock programs, APHIS would 

consult with the NPPOs of exporting 

countries to develop workplans that 

would specify how these principles and 

standards would be achieved in local 

conditions for each country or for areas 

within countries. The NPPO would 

share with APHIS responsibility for 

ensuring that participants in the 

programs comply with the requirements 

of the program. To develop the best 

management practices program, APHIS 

could cooperate with professional 

organizations or work directly with 

importers. 

Penalties for not complying with the 

requirements of the programs would be 

imposed in a graded manner, to 

encourage compliance. Penalties would 

ultimately include suspension or 

removal from the program. Facilities, 

exporters, importers, and countries 

could all ultimately be removed from 

the programs if major or repeated 

violations of program requirements 

occurred. 

Participants would have a continuing 

incentive to satisfy the requirements of 

the programs, as the importation of 

certain plants for planting would be 

contingent on satisfying the programs’

requirements. For example, taxa of 

plants for planting that would be 

excluded from importation pending risk 

evaluation and approval could be 

imported if they were exported by 

producers that participated in a clean 

stock program or were imported by 

participants in a best practices program; 

plants for planting exported by 

producers in full compliance with the 

requirements of a clean stock program 

would likely be free of both pathogens 

and insect pests upon importation into 

the United States, while domestic firms 

participating in a best practices program 

would minimize the risk that any 

pathogens or insect pests that might still 

be present would be introduced into the 

United States. In addition, it is possible 

that we could allow importation of 

plants for planting from countries in 

which certain pathogens or other pests 

are prevalent if the specific facility that 

wished to export such plants for 

planting participated in a clean stock 

program. 

We invite responses to the following 

questions in particular on the clean 

stock programs we are considering: 

1. Is it feasible to use this type of 

program in producing large volumes of 

taxa of plants for planting other than 

those that are currently exported to the 

United States under the programs in our 

regulations? What additional costs 

might be associated with growing other 

taxa of plants for planting under this 

type of program? What benefits might be 

associated with implementing such a 

program?

2. What specific aspects of these 

programs could prove problematic or 

would require detailed attention? 

3. How could a clean stock program 

be designed to ensure that quarantine 

pests are not inadvertently brought to 

the United States along with plants for 

planting? 

4. Are there any foreign clean stock 

programs not mentioned in our 

regulations that could serve as models 

for a general clean stock program? 

We invite responses to the following 

questions in particular on the best 

management practices program we are 

considering: 

1. As noted above, draft codes of 

conduct that could form the core of a 

best management practices program 

already exist. Are these codes a feasible 

starting point from which to develop a 

best management practices program? 

2. Do other applicable best 

management practices programs exist? 

Which of these is the best one, and 

why? What additional costs might be 

associated with growing plants for 

planting under this type of program? 

What benefits might be associated with 

implementing such a program? 

3. What existing industry practices 

should be incorporated into this 

program? 

4. What permit conditions would help 

to reduce the risk that quarantine pests 

associated with plants for planting 

imported in limited quantities for 

testing could become established, or 

that the plants for planting themselves, 

if the taxon proves to be invasive, could 

become established? 

5. What would be the best way to 

identify and assess any environmental 

risks that might be associated with the 

importation of plants for planting under 

a best management practices program? 

Combining Existing Regulations 

Governing the Importation of Plants for 

Planting 

As described above, the nursery stock 

regulations restrict, among other things, 

the importation of living plants, plant 

parts, seeds, and plant cuttings for 

planting or propagation. Other subparts 

in 7 CFR part 319 also contain 

regulations restricting, among other 

things, the importation of plants for 

planting. These subparts address the 

risks associated with the importation of 

specific articles or the prevention of the 

introduction and establishment of 

specific diseases, as opposed to the 

more general scope of the nursery stock 

regulations. Subparts containing such 

restrictions include ‘‘Subpart—Foreign 

Cotton and Covers’’ (§§ 319.8 through 

319.8–26), ‘‘Subpart—Sugarcane’’

(§§ 319.15 and 319.15a), ‘‘Subpart—

Citrus Canker’’ (§ 319.19), ‘‘Subpart—

Corn Diseases’’ (§§ 319.24 through 

319.24–5), ‘‘Subpart—Indian Corn or 

Maize, Broomcorn, and Related Plants’’

(§§ 319.41 through 319.41–6), 

‘‘Subpart—Rice’’ (§§ 319.55 through 

319.55–7), ‘‘Subpart—Wheat’’ (§§ 319.59 

through 319.59–2), and ‘‘Subpart—

Coffee’’ (§§ 319.73–1 through 319.73–4). 

In addition, the regulations in 7 CFR 

part 361, ‘‘Importation of Seed and 

Screenings Under the Federal Seed 

Act,’’ requires shipments of imported 

agricultural and vegetable seeds to be 

labeled correctly and to be tested for the 

presence of seeds of certain noxious 

weed seeds as a condition of entry into 

the United States, while the regulations 

in 7 CFR part 360, ‘‘Noxious Weed 

Regulations,’’ contain restrictions on the 

movement of noxious weed plants and 

plant parts listed in that part into or 

through the United States and interstate. 

We are considering whether to 

incorporate all the regulations regarding 

the importation of plants for planting 

into a single subpart. We would change 

the name of this subpart from 

‘‘Subpart—Nursery Stock, Plants, Roots, 

Bulbs, Seeds, and Other Plant Products’’

71744 Federal Register / Vol. 69, No. 237 / Friday, December 10, 2004 / Proposed Rules 

5A guide to SBA’s definitions of small business 

is available on the Internet at http://www.sba.gov/

size/indexguide.html. A table of small business size 

standards matched to the North American Industry 

Classification System is available at http://

www.sba.gov/size/sizetable2002.html.

to ‘‘Subpart—Plants for Planting’’ to 

reflect this change. We would also 

include the weed taxa whose 

importation is restricted by 7 CFR part 

360 as restricted articles in the new 

plants for planting regulations. Our 

intent in making such a change would 

be to improve the clarity and 

transparency of our regulations 

governing the importation of plants for 

planting by allowing users of the 

regulations to find all these regulations 

in one subpart. By making it easier for 

users of the regulations to find and 

follow the regulations relevant to their 

situation, this action could also improve 

compliance. 

We invite responses to the following 

questions in particular on the 

reorganization of the regulations for 

plants for planting we are considering: 

1. Should all the regulations 

governing the importation of plants for 

planting in the subparts listed above be 

incorporated into one subpart? If not, 

which subparts should be excluded, and 

why? 

2. If we should incorporate the 

regulations governing the importation of 

plants for planting in the subparts listed 

above into one subpart, which subparts 

should we incorporate first? Should we 

combine them all at once? 

Reevaluating Taxa Whose Importation 

Is Currently Prohibited 

The regulations in § 319.37–2(a) list 

taxa whose importation is prohibited 

because the importation of plants for 

planting from these taxa poses a risk of 

introducing a quarantine pest into the 

United States. Several of the other 

subparts listed above also prohibit the 

importation of certain taxa of plants for 

planting. Many of these taxa were 

prohibited from being imported after the 

discovery of a single quarantine pest as 

found in a shipment offered for 

importation into the United States or as 

reported in the scientific literature. 

Complete quarantine pest lists are not 

available for each of these taxa. In 

addition, the regulations in § 319.37–

2(b) prohibit the importation of certain 

taxa of plants for planting if the plants 

for planting exceed certain sizes or ages. 

These limits have not been reviewed 

recently. 

In accordance with recommendation 

E–48 in the Safeguarding Report, we are 

considering reviewing the taxa of plants 

for planting whose importation is 

currently prohibited to determine 

whether the pests of concern presently 

qualify as quarantine pests by the 

definition cited above. Since the time 

these plant taxa were designated as 

prohibited, the pest of concern may 

have become established in the United 

States, or scientific evidence may have 

become available that indicates that the 

pest of concern does not qualify as a 

quarantine pest. If we undertake this 

review, we will begin by conducting a 

PRA to determine the pests of 

quarantine concern associated with 

these taxa and whether prohibition is 

the only approach to mitigation that 

would prevent quarantine pests 

associated with these taxa of plants for 

planting from becoming established in 

the United States. 

We invite responses to the following 

question on our potential reevaluation 

of taxa of plants for planting whose 

importation is currently prohibited: 

1. Which taxa should be candidates 

for review? Which of these taxa should 

be assigned the highest priority for 

review? Please identify the taxa by 

scientific name and provide scientific 

information to support your suggestion. 

Please also provide information, if 

known, on any quarantine pests other 

than the pest(s) of concern listed in the 

regulations that may be associated with 

the taxa. 

2. Which prohibitions on the basis of 

size or age should be candidates for 

review? Which of these prohibitions 

should be assigned the highest priority 

for review? 

We further invite comment on which 

of the five measures above should be 

assigned the highest priority for 

implementation, if any. 

Economic Data About the Plants for 

Planting Industry 

Except for combining existing 

regulations governing the importation of 

plants for planting, which would be an 

administrative change, all the measures 

we are considering for revising the 

regulations would be likely to have an 

economic impact on numerous entities 

considered ‘‘small’’ according to the size 

standards established by the Small 

Business Administration (SBA).5 After 

we receive answers to the specific 

questions listed above regarding the five 

measures we are considering, we may 

issue a proposal or proposals with the 

goal of implementing one or more of 

these measures. In order to conduct the 

economic analysis required by the 

Regulatory Flexibility Act for those 

potential proposals and assess the 

impact of any changes we might 

propose on small entities, we will need 

more economic data about the plants for 

planting industry than are currently 

available to us. Therefore, we invite the 

public to provide us with data regarding 

the structure of the plants for planting 

industry, including the number of firms 

in the industry, the number of firms that 

could be considered small according to 

the SBA’s size standards, the number of 

firms whose business directly involves 

the importation of plants for planting, 

and any other data that would assist us 

in conducting economic analyses 

associated with these measures.

We would also appreciate any 

suggestions the public may have for 

improving other aspects of the 

regulations to reduce the risk of 

introducing quarantine pests into the 

United States.

Authority: 7 U.S.C. 450 and 7701–7772; 21 

U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 

371.3.

Done in Washington, DC, this 6th day of 

December 2004. 

Bill Hawks, 

Under Secretary for Marketing and Regulatory 

Programs.

[FR Doc. 04–27139 Filed 12–9–04; 8:45 am] 

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service 

7 CFR Part 930

[Docket No. FV04–930–2 PR] 

Tart Cherries Grown in the States of 

Michigan, et al.; Final Free and 

Restricted Percentages for the 2004–

2005 Crop Year

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Proposed rule.

SUMMARY: This rule invites comments 

on the establishment of final free and 

restricted percentages for the 2004–2005 

crop year. The percentages are 72 

percent free and 28 percent restricted 

and would establish the proportion of 

tart cherries from the 2004 crop which 

may be handled in commercial outlets. 

The percentages are intended to 

stabilize supplies and prices, and 

strengthen market conditions. The 

percentages were recommended by the 

Cherry Industry Administrative Board, 

the body that locally administers the 

marketing order. The marketing order 

regulates the handling of tart cherries 

grown in the States of Michigan, New 

York, Pennsylvania, Oregon, Utah, 

Washington, and Wisconsin.

DATES: Comments must be received by 

January 10, 2005.