Vol. 78 Thursday, 

No. 80 April 25, 2013 

Part VI 

Department of Agriculture 

Animal and Plant Health Inspection Service 

7 CFR Parts 319 and 340 

Restructuring of Regulations on the Importation of Plants for Planting; 

Proposed Rules 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24634 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

1Small lots of seed imported in accordance with 

§ 319.37–4(d) are exempt from this requirement. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Parts 319 and 340 

[Docket No. APHIS–2008–0011] 

RIN 0579–AD75 

Restructuring of Regulations on the 

Importation of Plants for Planting 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: We are proposing to 

restructure our regulations governing 

the importation of plants for planting. In 

the proposed structure, restrictions on 

the importation of specific types of 

plants for planting would no longer be 

found in the regulations, but instead 

would be found in the Plants for 

Planting Manual. We would change 

those restrictions after taking public 

comment through notices published in 

the Federal Register. As part of this 

restructuring, we would group together 

restrictions in the plants for planting 

regulations that apply to the importation 

of most or all plants for planting, and 

we would add general requirements for 

the development of integrated pest risk 

management measures that we would 

use to mitigate the risk associated with 

the importation of a specific type of 

plants for planting. We would also 

amend our foreign quarantine 

regulations to remove various 

provisions regarding the importation of 

specific types of plants for planting that 

are not currently subject to the general 

plants for planting regulations; these 

provisions would also be found in the 

Plants for Planting Manual. This action 

would not make any major changes to 

the restrictions that currently apply to 

the importation of plants for planting. 

These changes would make restrictions 

on the importation of specific types of 

plants for planting easier for readers to 

find and less cumbersome for us to 

change. 

DATES: We will consider all comments 

that we receive on or before June 24, 

2013. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS–2008– 

0011–0001. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2008–0011, Regulatory Analysis 

and Development, PPD, APHIS, Station 

3A–03.8, 4700 River Road Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http:// 

www.regulations.gov/ 

#!docketDetail;D=APHIS-2008-0011 or 

in our reading room, which is located in 

room 1141 of the USDA South Building, 

14th Street and Independence Avenue 

SW., Washington, DC. Normal reading 

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

Monday through Friday, except 

holidays. To be sure someone is there to 

help you, please call (202) 799–7039 

before coming. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Heather Coady, Regulatory Policy 

Specialist, Plants for Planting Policy, 

PPQ, APHIS, 4700 River Road Unit 133, 

Riverdale, MD 20737; (301) 851–2076. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the Plant Protection Act (7 

U.S.C. 7701 et seq.), the Secretary of 

Agriculture is authorized to take such 

actions as may be necessary to prevent 

the introduction and spread of plant 

pests and noxious weeds within the 

United States. The Secretary has 

delegated this responsibility to the 

Administrator of the Animal and Plant 

Health Inspection Service (APHIS). 

The regulations in 7 CFR part 319 

prohibit or restrict the importation of 

plants and plant products into the 

United States to prevent the 

introduction of plant pests that are not 

already established in the United States 

or plant pests that may be established 

but are under official control to 

eradicate or contain them within the 

United States. 

The regulations in ‘‘Subpart—Plants 

for Planting,’’ §§ 319.37 through 319.37– 

14 (referred to below as the regulations), 

restrict the importation of plants for 

planting. Plants for planting is defined 

in § 319.37–1 as plants intended to 

remain planted, to be planted or 

replanted. Plant is defined in that 

section as any plant (including any 

plant part) capable of propagation, 

including a tree, a tissue culture, a 

plantlet culture, pollen, a shrub, a vine, 

a cutting, a graft, a scion, a bud, a bulb, 

a root, and a seed. 

Current Regulations 

The current regulations can be briefly 

summarized as follows: Plants for 

planting that cannot be feasibly 

inspected, treated, or handled to prevent 

quarantine pests that may accompany 

them from being introduced into the 

United States are listed in § 319.37–2(a) 

or (b) of the regulations as prohibited 

articles. Plants for planting whose 

importation poses a risk of introducing 

a quarantine pest into the United States, 

and which need to be further analyzed 

to determine appropriate mitigations for 

that risk, are listed as not authorized 

pending pest risk analysis (NAPPRA) in 

accordance with the process in 

§ 319.37–2a of the regulations. 

Prohibited articles and NAPPRA articles 

may not be imported into the United 

States, unless imported by the U.S. 

Department of Agriculture (USDA) for 

experimental or scientific purposes 

under safeguards specified in the permit 

issued for the importation of the 

articles. 

Other plants for planting are referred 

to in the regulations as restricted 

articles. Restricted articles may be 

imported into the United States if they 

are imported in compliance with 

conditions that may include permit and 

phytosanitary certificate requirements, 

inspection, treatment, postentry 

quarantine, special inspection and 

certification requirements, or 

combinations of these safeguards. 

Some restrictions apply to the 

importation of most or all plants for 

planting. Under § 319.37–3(a)(5), lots of 

13 or more articles (other than seeds, 

bulbs, or sterile cultures of orchid 

plants) from any country or locality 

except Canada may be imported into the 

United States only after issuance of a 

written permit. This means that most 

plants for planting are imported with a 

permit. 

All plants for planting imported into 

the United States must be presented for 

inspection. Plants for planting that are 

required to be imported under a written 

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

(a)(6) and that are not from Canada must 

be imported or offered for importation at 

a USDA plant inspection station.1 Such 

stations are listed in § 319.37–14. Plants 

for planting that are offered for 

inspection at a USDA plant inspection 

station are inspected by Plant Protection 

and Quarantine (PPQ) inspectors. Plants 

for planting that are not required to be 

inspected at a USDA plant inspection 

station may be presented for inspection 

either at one of the ports listed in 

§ 319.37–14 or at a Customs designated 

port of entry indicated in 19 CFR 

101.3(b)(1). Such plants are inspected 

by the Department of Homeland 

Security’s Bureau of Customs and 

Border Protection. 

After inspection, the plants may be 

allowed entry into the United States 

(with treatment, if necessary), 

destroyed, or reexported, depending on 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24635 

the results of the inspection. As noted 

earlier, most shipments of plants for 

planting are required to be imported 

under a written permit under § 319.37– 

3(a)(5) and are thus inspected at USDA 

plant inspection stations. 

In addition, except for bulbs from the 

Netherlands, Canadian greenhousegrown plants, small lots of seed, and 

certain seeds from Canada (as described 

in § 319.37–4(a)(4), (c), (d), and (e), 

respectively), the regulations require 

that a phytosanitary certificate issued by 

the exporting country’s national plant 

protection organization (NPPO) 

accompany all restricted articles 

imported into the United States. 

Some types of plants for planting may 

only be imported in accordance with 

requirements specific to those plants. 

These requirements are found in 

§§ 319.37–5 through 319.37–7 of the 

regulations. Section 319.37–8 prohibits 

the importation of plants for planting in 

growing media, except for specified 

growing media. In addition, § 319.37–8 

provides for the importation of certain 

combinations of growing media and taxa 

if the plants for planting are produced 

and inspected according to specific 

requirements in that section. 

In addition to setting out the 

requirements for the importation of 

plants for planting in the regulations, 

APHIS also makes them available in the 

Plants for Planting Manual, which is 

commonly used as a reference by 

importers and port inspectors, among 

others. The Plants for Planting Manual 

is available on the Web at http:// 

www.aphis.usda.gov/import_export/ 

plants/manuals/ports/downloads/ 

plants_for_planting.pdf or by contacting 

the Animal and Plant Health Inspection 

Service, Plant Protection and 

Quarantine, 4700 River Road Unit 133, 

Riverdale, MD 20737–1236. Local PPQ 

offices also typically have copies 

available for review. 

Summary of Proposed Changes 

In this document, we are proposing to 

restructure the plants for planting 

regulations to make them simpler and 

easier to read and to allow for more 

timely changes to the restrictions on the 

importation of specific types of plants 

for planting. To accomplish these goals, 

we would make the following changes: 

• We would remove provisions from 

other subparts in 7 CFR part 319 that 

regulate the importation of plants for 

planting and thus consolidate the 

requirements for importation of all 

plants for planting under the plants for 

planting regulations. 

• We would add most of the plants 

for planting that are listed as prohibited 

in § 319.37–2(a) to the list of plants for 

planting whose importation is NAPPRA 

in accordance with current § 319.37–2a. 

Other prohibitions would be reflected in 

the Plants for Planting Manual. This 

document is currently used by 

importers and inspectors as a reference 

regarding restrictions on the importation 

of plants for planting. 

• Within the plants for planting 

regulations, we would group together 

the requirements that apply to the 

importation of all or most plants for 

planting. 

• We are proposing that restrictions 

on the importation of specific types of 

plants for planting would no longer be 

found in the regulations, but instead 

would be found in the Plants for 

Planting Manual. We are proposing to 

change these restrictions after taking 

public comment on notices published in 

the Federal Register, rather than 

publishing proposed rules and final 

rules as we currently do. Specifically, 

we would publish a notice announcing 

our determination that it is necessary to 

add, change, or remove restrictions on 

the importation of a specific type of 

plants for planting and make available 

a document describing those restrictions 

and why they are necessary. We would 

allow for public comment on the notice 

and the document it makes available. 

We would then respond to any 

comments we receive in a second 

notice, and implement the restrictions if 

our determination remains unchanged. 

(This process is described in more detail 

later in this document.) 

• We would remove several lists of 

approved items (for example, the lists of 

approved growing media, packing 

materials, and ports of entry) from the 

regulations and instead provide these 

lists to the public in the Plants for 

Planting Manual. We would update 

these lists, when necessary, using a 

process similar to the one we are 

proposing to use to update restrictions 

on the importation of specific types of 

plants for planting. 

• We are proposing to establish a 

framework for the use of integrated pest 

management measures in the 

production of specific types of plants for 

planting for importation into the United 

States, when the pest risk associated 

with the importation of a type of plants 

for planting can only be addressed 

through the use of integrated measures. 

• We are also proposing several 

minor changes to the regulations to 

improve their clarity and reflect current 

program operations. 

We are not proposing to make major 

changes to the restrictions that currently 

apply to the importation of plants for 

planting. This proposal is directed 

towards making the regulations easier to 

use and to implement. Our proposed 

changes are discussed in detail below. 

Removal of Restrictions on the 

Importation of Specific Types of Plants 

for Planting in Other Subparts 

In addition to the plants for planting 

regulations, part 319 contains several 

subparts that regulate the importation of 

all plants and plant parts of a specific 

type, both plants for planting and plants 

for consumption, decoration, or other 

uses. Specifically, plants for planting 

and plants for other uses are regulated 

in subparts pertaining to the 

importation of cotton; sugarcane; corn; 

Indian corn or maize, broomcorn, and 

related plants; rice; wheat; coffee; 

Khapra beetle host articles; and gypsy 

moth host articles from Canada. In 

addition, § 319.19 separately prohibits 

the importation of citrus plants for 

planting (specifically, the subfamilies 

Aurantioideae, Rutoideae, and 

Toddalioideae of the family Rutaceae). 

To reflect this, the plants for planting 

regulations limit their scope to 

restricted articles of plants for planting. 

In § 319.37–1, restricted article is 

defined as any regulated plant, root, 

bulb, seed, or other plant product 

capable of propagation, excluding the 

following: 

• Prohibited articles; 

• Articles whose importation is 

NAPPRA under § 319.37–2a; 

• Any articles regulated in §§ 319.8 

through 319.24 or 319.41 through 

319.74–4; and 

• Any articles regulated in 7 CFR part 

360, which regulates the importation 

and interstate movement of plant taxa 

designated as noxious weeds. 

(Regulated plant is separately defined to 

indicate exactly what organisms are 

considered plants for the purposes of 

the regulations.) The definition of 

restricted article excludes the plants for 

planting whose importation is regulated 

under the subparts mentioned earlier, 

except the Khapra beetle and gypsy 

moth subparts. 

The restrictions on the importation of 

plants for planting under some of these 

subparts differ from the restrictions that 

would be placed on their importation 

under the general plants for planting 

regulations. For example, while the 

plants for planting regulations require 

all imported articles to be accompanied 

by a phytosanitary certificate, many of 

the other subparts do not. We consider 

a phytosanitary certificate (as defined in 

§ 319.37–1) to be an essential means of 

determining the risk associated with 

plants for planting. 

In general, we have determined that 

the restrictions in the plants for planting 

regulations are necessary to mitigate the 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24636 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

risks associated with the importation of 

all plants for planting, not just those 

that are currently defined as restricted 

articles. In addition, the current 

structure of the regulations is confusing 

for the reader, who may have to consult 

several subparts to determine which 

restrictions apply to the importation of 

a specific type of plants for planting. 

Therefore, we are proposing to amend 

the other subparts in part 319 to 

indicate that they do not regulate the 

importation of plants for planting and to 

remove provisions in those subparts that 

regulate the importation of plants for 

planting. Restrictions on the 

importation of articles other than plants 

for planting would not be affected in 

any way by these proposed changes. 

These amendments would make it 

unnecessary to have a definition of 

restricted article in the regulations; the 

term ‘‘plants for planting’’ would 

include all articles subject to the 

restrictions in the plants for planting 

regulations. Therefore, we are proposing 

to remove the definition of restricted 

article from § 319.37–1 and to remove 

references to that term from the 

regulations. Instead, the regulations 

would simply refer to restrictions on the 

importation of plants for planting. 

We are proposing to make several 

changes to the current definition of 

plants for planting: 

• To make it clear that the scope of 

the regulations includes only regulated 

plants, we are proposing to amend the 

definition of plants for planting to refer 

specifically to regulated plants. 

• The definition of restricted article 

refers to articles for or capable of 

propagation. This allows us to regulate 

the importation of commodities like 

birdseed, which is not intended for 

propagation but is distributed by 

consumers in a manner that could lead 

to its propagation. We are proposing to 

amend the definition of plants for 

planting to include plants capable of 

propagation, so that we would retain the 

discretion to regulate such plants. 

• We do not believe it is necessary to 

state that plants for planting are 

intended to remain planted, to be 

planted or replanted when the 

definition refers to plants for or capable 

of propagation. Referring simply to 

plants that are for planting or capable of 

being planted would cover the relevant 

possibilities. 

• The definition of plant indicates 

that the term includes any plant part. 

The definition of plants for planting 

incorporates the term plant and thus 

includes plant parts as well. However, 

since the regulations will now refer 

primarily to ‘‘plants for planting,’’ we 

believe it would be useful to clarify in 

the definition of plants for planting that 

this term also includes any parts of a 

plant. 

The revised definition of plants for 

planting would read: ‘‘Regulated plants 

(including any plant parts) that are for 

planting or capable of being planted.’’ 

We would amend the other subparts 

that currently regulate the importation 

of specific taxa of plants for planting as 

follows: 

• Subpart—Foreign Cotton and 

Covers, which consists of §§ 319.8 

through 319.8–26, regulates the 

importation of cottonseed, which can 

either be used for planting or for 

processing. We would add a new 

paragraph to § 319.8 indicating that the 

importation of cotton plants (including 

any plant parts) that are for planting or 

capable of being planted is restricted in 

‘‘Subpart—Plants for Planting.’’ In 

addition, to make the scope of the 

subpart clear, we would amend the 

definition of cottonseed in § 319.8–1 to 

indicate that it only includes cottonseed 

intended for processing or consumption. 

• Subpart—Sugarcane, which 

consists of §§ 319.15 and 319.15a, 

restricts the importation of all parts of 

the sugarcane plant, including 

sugarcane for planting. We would add a 

new paragraph to § 319.15 indicating 

that the importation of sugarcane plants 

and plant parts capable of remaining 

planted, being planted or replanted is 

restricted in ‘‘Subpart—Plants for 

Planting.’’ 

• We would remove Subpart—Citrus 

Canker and Other Citrus Diseases, 

which consists of § 319.19. As noted 

earlier, this subpart prohibits the 

importation of plants for planting from 

subfamilies Aurantioideae, Rutoideae, 

and Toddalioideae of the family 

Rutaceae to prevent the introduction of 

citrus canker and other citrus diseases. 

As the scope of this subpart is limited 

to plants for planting, there is no need 

to retain any of its provisions as part of 

this consolidation. In addition, as part 

of this change, we would prohibit the 

importation of the other subfamily of 

Rutaceae, Flindersioideae. Although it 

is not specified in § 319.19 as being 

prohibited for importation, the 

importation of plants for planting from 

this subfamily would also be a pathway 

for the introduction of citrus canker and 

other citrus diseases, and we have 

prohibited the importation of 

Flindersioideae plants for planting in 

the past. 

• Subpart—Corn Diseases, which 

consists of §§ 319.24 through 319.24–5, 

restricts the importation of Indian corn 

and maize and related plants from 

certain countries. We would add a new 

paragraph to § 319.24 indicating that the 

importation of corn plants (including 

any plant parts) that are for planting or 

capable of being planted is restricted in 

‘‘Subpart—Plants for Planting.’’ 

• Subpart—Indian Corn or Maize, 

Broomcorn, and Related Plants, which 

consists of §§ 319.41 through 319.41–6, 

also restricts the importation of Indian 

corn and maize and related plants from 

various countries. We would add a new 

paragraph to § 319.41 indicating that the 

importation of plants (including any 

plant parts) of any of the taxa listed as 

hosts of quarantine pests in paragraph 

(b) of that section that are for planting 

or capable of being planted is restricted 

in ‘‘Subpart—Plants for Planting.’’ In 

addition, we would make a change to 

reflect historical prohibitions that are 

not set out in this subpart. Historically, 

PPQ has prohibited the importation of 

corn seed of the genera Echinochloa, 

Eleusine, Miscanthus, Panicum, 

Pennisetum, Setaria, and Tripsacum 

from areas including Africa, Australia, 

Brazil, Bulgaria, Japan and adjacent 

islands, Korea, New Zealand, Oceania, 

the People’s Republic of China, 

Southeast Asia, Taiwan, and the former 

Soviet Union, but this prohibition has 

not been reflected in the regulations. We 

would add seed of these taxa to the 

NAPPRA category as part of this action. 

We have prepared a pest risk analysis 

(PRA) in support of this action that 

details the quarantine pests associated 

with seed of these genera. The PRA can 

be viewed on Regulations.gov (see 

ADDRESSES above for instructions on 

accessing Regulations.gov). A copy of 

the PRA can also be requested from the 

person listed under FOR FURTHER

INFORMATION CONTACT. We welcome 

public comment on this proposed 

action. 

• Subpart—Rice, which consists of 

§§ 319.55 through 319.55–7, restricts the 

importation of seed or paddy rice, rice 

straw, and rice hulls. We would add a 

new paragraph to § 319.55 indicating 

that the importation of seed and paddy 

rice, which is always used for planting, 

is restricted in ‘‘Subpart—Plants for 

Planting.’’ In addition, we would 

remove references to prohibitions or 

restrictions on the importation of seed 

and paddy rice. Specifically, we would 

remove the general prohibition on the 

importation of seed and paddy rice in 

§ 319.55(a) and (b), the permit 

application requirement for seed and 

paddy rice in § 319.55–2(a), the port of 

entry requirements in § 319.55–3(a) and 

(c), the inspection and disinfection 

requirements in § 319.55–6(a), and the 

requirements for importation by mail in 

§ 319.55–7. 

• Subpart—Wheat Diseases, which 

consists of §§ 319.59–1 through 319.59– 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24637 

4, restricts the importation of wheat 

articles from various countries. Articles 

regulated under the subpart are defined 

as ‘‘host crops’’ in § 319.59–1. In 

addition, the term seed is defined as 

wheat and triticale used for propagation. 

We would add a new paragraph to 

§ 319.59–2 indicating that the 

importation of host crops, including 

seed, and any other plant parts that are 

for planting or capable of being planted 

is restricted in ‘‘Subpart—Plants for 

Planting.’’ We would also amend the 

definition of grain in § 319.59–1 to 

indicate that it includes only articles not 

for planting. We would also remove 

provisions related to the importation of 

seed in § 319.59–3(a) and § 319.59–4(a). 

Subpart—Wheat Diseases also 

contains specific provisions regarding 

the importation of Triticum spp. plants, 

which are used for planting. We would 

remove the general prohibition on the 

importation of Triticum spp. plants in 

§ 319.59–2(a) and the exception in 

§ 319.59–2(b). 

• Subpart—Coffee, which consists of 

§§ 319.73–1 through 319.73–4, regulates 

the importation of unroasted coffee, 

which can be used either for planting or 

processing. To make the scope of the 

subpart clear, we would amend the 

definition of unroasted coffee in 

§ 319.73–1 to indicate that it only 

includes unroasted coffee intended for 

processing. Paragraph (a)(2) of § 319.73– 

2 lists coffee plants and leaves as 

articles whose importation is prohibited 

under Subpart—Coffee; we would revise 

paragraph (a)(2) so that it includes 

coffee leaves only. In addition, 

paragraph (b) of § 319.73–2 states that, 

due to the risk of Mediterranean fruit fly 

and other injurious insects, seeds of all 

kinds when in pulp, including coffee 

berries or fruits, are prohibited 

importation into all parts of the United 

States by § 319.37–2(a), except as 

provided in § 319.37–2(c). We are 

proposing to replace this paragraph with 

a general statement indicating that the 

importation of any coffee plants 

(including bare seeds, seeds in pulp, 

and any other plant parts) that are for 

planting or capable of being planted is 

restricted in ‘‘Subpart—Plants for 

Planting.’’ 

Although the plants for planting 

regulated under the Khapra beetle and 

gypsy moth subparts are not excluded 

from the current definition of restricted 

article, we believe it is necessary to 

amend these subparts as well to clarify 

that the importation of plants for 

planting is governed by the plants for 

planting regulations. 

• Subpart—Khapra Beetle, which 

consists of §§ 319.75 through 319.75–9, 

regulates the importation of articles of 

several different types to prevent the 

introduction of Khapra beetle into the 

United States. Currently, this subpart 

includes a definition of nursery stock (a 

synonym for ‘‘plants for planting’’ 

formerly used in the plants for planting 

regulations) and several provisions 

regulating the importation of nursery 

stock and plants. We are proposing to 

remove the definition of nursery stock 

in § 319.75–1 and the requirements for 

inspection and certification of nursery 

stock, plants, roots, and bulbs in 

§ 319.75–9. (These requirements also 

refer to seed, but only seed not for 

propagation is restricted under this 

subpart.) In § 319.75–2, which lists 

restricted articles, footnote 1 states that 

the importation of certain restricted 

articles is subject to prohibitions or 

restrictions found elsewhere in 7 CFR 

part 319. We would add to this footnote 

a statement that the importation of any 

restricted articles that are for planting or 

capable of being planted is restricted 

under the plants for planting 

regulations. 

• Subpart—Gypsy Moth Host 

Material from Canada, which consists of 

§§ 319.77–1 through 319.77–5, regulates 

the importation of several different 

types of articles to prevent the 

introduction of gypsy moth. Section 

319.77–2 lists trees with roots and 

shrubs with roots as regulated articles; 

we would remove those articles from 

the list, as they are plants for planting. 

We would retain trees without roots in 

the list of regulated articles, as such 

trees are typically not used for planting. 

(A common example is Christmas trees.) 

Section 319.77–4 sets out conditions for 

the importation of restricted articles, 

including trees with roots and shrubs 

with roots. We would remove the 

references to those plants. In addition, 

footnote 1 to § 319.77–4 states that trees 

and shrubs from Canada may be subject 

to additional restrictions under the 

plants for planting regulations; we 

would remove this statement, as the 

importation of trees with roots and 

shrubs with roots from Canada would 

only be subject to the plants for planting 

regulations. We would retain the 

statement that trees may be subject to 

additional restrictions under Subpart— 

Logs, Lumber, and Other 

Unmanufactured Wood Articles, as the 

importation of trees without roots 

would still potentially be regulated 

under that subpart. 

None of the other subparts in 7 CFR 

part 319 regulates the importation of 

plants for planting. Of the subparts that 

regulate the importation of articles, 

Subpart—Logs, Lumber, and Other 

Unmanufactured Wood Articles and 

Subpart—Fruits and Vegetables clearly 

indicate that they only regulate articles 

not for propagation. (We are proposing 

to update the reference to the plants for 

planting regulations in § 319.40–2(c) to 

refer to their newer name, ‘‘Subpart— 

Plants for Planting.’’ We are proposing 

the same change in § 340.0.) However, 

Subpart—Cut Flowers, which consists 

of §§ 319.74–1 through 319.74–4, does 

not clearly indicate that it does not 

regulate the importation of plants for 

planting. Cuttings of flowers may also 

be intended for planting, in which case 

they should be and are regulated under 

the plants for planting regulations. 

Therefore, we are proposing to amend 

the definition of cut flower in § 319.74– 

1 to specify that cut flowers regulated 

under that subpart are not for planting. 

As mentioned earlier, plants for 

planting that have been allowed to be 

imported under these subparts would 

now be subject to the general 

requirements of the plants for planting 

regulations, which is appropriate given 

the generally high risk associated with 

the importation of plants for planting. 

Any specific requirements for plants for 

planting whose importation is regulated 

under these subparts would remain 

unchanged. 

These changes would harmonize our 

approach to mitigating the risk 

associated with imported plants for 

planting and make the regulations easier 

to use. 

Adding Prohibited Plants for Planting to 

the NAPPRA List 

The regulations in § 319.37–2(a) list 

types of plants for planting whose 

importation from specific areas is 

prohibited because they are hosts of 

quarantine pests. The prohibited plants 

are listed in a table that indicates the 

plants subject to the prohibition, the 

foreign places from which their 

importation is prohibited, and the plant 

pest(s) that are the cause of the 

prohibition. The types of plants for 

planting in this list have been added to 

the list based on a risk evaluation. Some 

of the types of plants for planting listed 

are simply listed as prohibited; others 

are prohibited unless imported in 

accordance with special inspection and 

certification requirements in § 319.37–5. 

Paragraph (b) of § 319.37–2(b) 

prohibits the importation of certain 

additional types of plants for planting 

from all foreign countries except Canada 

based on size and age criteria. The 

importation of plants that do not meet 

these size and age criteria is prohibited 

because larger and older plants pose a 

higher pest risk than younger and 

smaller ones, and because it is 

impractical to inspect the listed plants 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24638 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

2At http://www.aphis.usda.gov/import_export/ 

plants/plant_imports/Q37_nappra.shtml. 

3 In this document, we are proposing to 

redesignate § 319.37–2a as § 319.37–4. This change 

is discussed further under the heading 

‘‘Restructuring of the Plants for Planting 

Regulations.’’ The paragraph designations discussed 

in this section would remain the same. 

for quarantine pests when they are large 

and old. 

The regulations in § 319.37–2a 

provide a process for listing the 

importation of taxa of plants for 

planting as not authorized pending pest 

risk analysis (NAPPRA), based on the 

risk of introducing a quarantine pest 

into the United States through the 

importation of the taxa. Such taxa are 

commonly referred to as ‘‘NAPPRA 

taxa,’’ and the lists of such taxa as the 

‘‘NAPPRA lists.’’ The regulations do not 

set out the NAPPRA lists, but rather 

provide criteria and a process for adding 

taxa to the NAPPRA lists; the lists 

themselves are maintained on the PPQ 

Web site.2

We are proposing to remove the 

prohibited types of plants for planting 

in paragraphs (a) and (b) of § 319.37–2 

from the regulations. We would add 

most of the types of plants for planting 

listed in paragraph (a) to the NAPPRA 

list of plants for planting that are hosts 

of quarantine pests. 

We believe the existence of two 

categories of plants for planting whose 

importation into the United States is not 

allowed could confuse readers. For 

example, the importation of Cedrus spp. 

from Europe is prohibited in § 319.37– 

2(a) because Douglas fir canker and 

seedling disease, both quarantine pest 

pathogens, are present in Europe, and 

Cedrus spp. are hosts of those 

pathogens. If we receive evidence that 

one of those pathogens has spread to 

Asia, we would add Cedrus spp. to the 

NAPPRA list for Asia and for other 

countries not exporting Cedrus spp. to 

the United States, because there is a risk 

that the pathogen could spread to those 

countries before they decide in the 

future to export Cedrus spp. However, if 

someone reading the NAPPRA list on 

the plants for planting Web site saw that 

the importation of Cedrus spp. from 

Asia was NAPPRA, that person might 

not think to check the list of prohibited 

articles in § 319.37–2(a) in order to 

determine whether the importation of 

Cedrus spp. is prohibited from Europe, 

and thus might import or apply for an 

import permit for Cedrus spp. grown in 

(for example) Denmark. This change 

would eliminate the potential for such 

confusion. 

In addition, adding the types of plants 

for planting whose importation is 

prohibited from § 319.37–2(a) to the 

NAPPRA list of hosts of quarantine 

pests would reflect the fact that, 

although these taxa may not be 

imported, anyone may still request that 

we conduct a PRA to determine what 

quarantine pests are currently 

associated with the importation of a 

prohibited taxon of plants for planting 

and the potential consequences of the 

introduction of those pests into the 

United States, as well as whether there 

are measures available to mitigate the 

risks those quarantine pests pose. 

Although our evaluation of these factors 

led us to prohibit the importation of all 

the taxa in § 319.37–2(a), this 

information may change. For example, 

new measures may become available to 

mitigate the risk associated with a 

particular pest, meaning that a 

previously infeasible importation can 

now be allowed subject to certain 

conditions. As another example, the 

pest that prompted the prohibition of 

the taxon may no longer be considered 

a quarantine pest, but new pests may be 

associated with a currently prohibited 

taxon that would require mitigation. 

Some of the other subparts in 7 CFR 

part 319 that were discussed under the 

previous heading also prohibit the 

importation of specific plants for 

planting. As part of this proposal, we 

would move those plants for planting to 

the NAPPRA list as well. 

The functions of paragraph (a) of 

§ 319.37–2 and the list of NAPPRA taxa 

that are hosts of quarantine pests are 

similar—preventing the importation of 

taxa that have been determined to pose 

a risk for which mitigations have not 

been identified. However, some types of 

plants for planting in § 319.37–2(a) are 

listed as prohibited if they are not 

imported in accordance with special 

inspection and certification conditions. 

For example, Malus spp. are listed as 

prohibited from all countries if not 

meeting the conditions for importation 

in § 319.37–5(b), due to a diversity of 

diseases. This paragraph allows Malus 

spp. to be imported from six countries 

under specified conditions. The effect of 

this listed paragraph is to indicate that 

Malus spp. can be imported from six 

countries, subject to specific conditions, 

and is prohibited from the remainder of 

the world. We would add Malus spp. to 

the NAPPRA list from all countries but 

the six listed in § 319.37–5(b), and we 

would indicate elsewhere that 

importation of Malus spp. from those six 

countries is only allowed in accordance 

with the conditions listed in § 319.37– 

5(b). We would handle other such 

entries in the list of prohibited articles 

in § 319.37–2(a) in a similar manner. 

Similarly, the types of plants for 

planting listed in paragraph (b) of 

§ 319.37–2 can be safely imported 

subject to requirements specified in that 

paragraph. In addition, one prohibited 

type of plants for planting in § 319.37– 

2(a), seeds in pulp, does not correspond 

to a plant taxon and thus cannot be 

listed in NAPPRA, as the NAPPRA lists 

set out taxa of plants for planting that 

have been determined to be quarantine 

pests or hosts of quarantine pests. In 

both cases, these provisions are better 

thought of not as prohibitions but as 

requirements for the importation of 

these types of plants for planting. 

Accordingly, we would not add these 

types of plants for planting to the 

NAPPRA list. We will discuss the 

distribution of these restrictions under 

the next heading in this document. 

Adding the prohibited types of plants 

for planting from § 319.37–2(a) to the 

NAPPRA list would necessitate 

additional changes to current § 319.37– 

2a.3 This section has indicated that taxa 

on the NAPPRA lists can be imported 

under a Departmental permit in 

accordance with § 319.37–2(c); as we 

would remove paragraph (a) from that 

section and put the taxa listed there into 

the NAPPRA category, it is appropriate 

to move the Departmental permit 

provisions to the end of the NAPPRA 

section, as a new paragraph (f), with 

appropriate changes. 

Paragraph (e) of § 319.37–2a discusses 

the removal of taxa from the NAPPRA 

list. Paragraph (e)(2) indicates that, if a 

PRA conducted for removal of a taxon 

from the NAPPRA list supports a 

determination that importation of the 

taxon be prohibited, or allowed subject 

to special restrictions, APHIS will 

publish a proposed rule making the PRA 

available to the public and proposing to 

take the action recommended by the 

PRA. As we are proposing to remove the 

lists of prohibited taxa from the 

regulations, it would no longer be 

necessary to publish a proposed rule if 

a PRA indicated that it was infeasible to 

mitigate the risk associated with the 

importation of a taxon and thus that the 

taxon should not be imported. 

Accordingly, we are proposing to 

amend paragraph (e)(2) to indicate that, 

if the PRA indicates that the taxon is a 

quarantine pest or a host of a quarantine 

pest and the Administrator determines 

that there are no measures available that 

adequately mitigate the risk of 

introducing a quarantine pest into the 

United States through the taxon’s 

importation, we would continue to list 

the taxon as NAPPRA. We would take 

comment on that determination by 

publishing a notice in the Federal 

Register making the PRA available for 

comment. If comments cause us to 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24639 

change our determination, we would 

take comment on our new 

determination before removing the 

taxon from the NAPPRA list. If 

comments do not cause us to change our 

determination, we would publish a 

second notice responding to the 

comments and affirming our 

determination that the taxon should 

continue to be listed as NAPPRA. 

We are also proposing to add text to 

clarify the provisions in paragraph (e). 

Paragraph (e)(1) describes how we will 

conduct a PRA in order to remove a 

taxon from the NAPPRA list. However, 

a taxon on the NAPPRA list of hosts of 

a quarantine pest will likely be listed as 

not authorized for importation from 

specific areas or countries where that 

pest is present. The PRA may not 

analyze the risks associated with the 

importation of the taxon from every 

country from which the taxon’s 

importation is not authorized; it is most 

likely that it would analyze one country 

at a time, since we must work with the 

NPPO of each country in order to 

prepare a PRA. Therefore, we are 

proposing to add the following 

explanation to the end of the 

introductory text of paragraph (e): ‘‘The 

pest risk analysis may analyze 

importation of the taxon from a specific 

area, country, or countries, or from all 

areas of the world. The conclusions of 

the pest risk analysis will apply 

accordingly.’’ 

Paragraph (e)(1) also currently states 

that the PRA conducted for a taxon on 

the NAPPRA list will examine the risk 

associated with the importation of that 

taxon. We are proposing to indicate that 

the PRA will examine measures 

available to mitigate that risk as well. 

With this change, the regulations would 

more completely describe the goals of 

the PRA. 

In addition, we are proposing one 

incidental change to current § 319.37– 

2a. As discussed under the next 

heading, we are proposing to move most 

of the information regarding the 

importation of specific types of plants 

for planting from the regulations to the 

Plants for Planting Manual. Paragraph 

(a) of § 319.37–2a currently indicates 

that the lists of NAPPRA taxa can be 

found on the PPQ Web site. To ensure 

that the Plants for Planting Manual is a 

comprehensive resource for information 

on the importation of specific types of 

plants for planting, we are proposing to 

indicate that the NAPPRA taxa will be 

listed in the Plants for Planting Manual 

as well. 

Removing Restrictions on Specific Types 

of Plants for Planting From the 

Regulations; Establishing a NoticeBased Process for Updating Those 

Restrictions 

Broadly, the regulations on the 

importation of plants for planting can be 

divided into two sets of requirements. 

As described earlier, some requirements 

apply to the importation of all or most 

plants for planting. Under § 319.37–3, 

most consignments of plants for 

planting must be imported with a 

permit. A phytosanitary certificate is 

also required for most plants for 

planting under § 319.37–4. Most plants 

for planting may not be imported in 

growing media under § 319.37–8, 

although they may be imported in 

specified packing materials under 

§ 319.37–9. All imported plants for 

planting must be marked and identified 

in accordance with § 319.37–10, and 

almost all must be presented at a port 

of entry approved for such importation 

under § 319.37–14. This is not an 

exhaustive list, but it gives an idea of 

the conditions that apply to the 

importation of all or most plants for 

planting. Where exceptions exist for 

these requirements, they are typically 

based on a risk analysis (for example, 

the taxa of plants for planting that are 

allowed to be imported in growing 

media, subject to certain conditions, 

under § 319.37–8) or on a determination 

by the Administrator that there are other 

equivalent means of satisfying the 

requirement (for example, 

documentation that can be substituted 

for a phytosanitary certificate under 

§ 319.37–4). 

Some requirements in the plants for 

planting regulations, in turn, apply to 

the importation of specific types of 

plants for planting. 

As previously discussed, in § 319.37– 

2, paragraph (b) sets out size and age 

criteria for the importation of specific 

types of plants for planting that are 

necessary in order to allow for 

inspection of those plants. 

Section 319.37–5 sets out special 

inspection and certification 

requirements for the importation of 

specific plant taxa. These include 

simple requirements like inspection and 

certification of freedom from a 

quarantine pest by an NPPO, as in the 

requirements in paragraph (a) of that 

section for microscopic inspection of 

soil in which articles are grown in 

certain countries and certification of 

freedom from potato cyst nematodes 

(Globodera rostochiensis and G. 

pallida). There are numerous 

requirements for certification that 

specific taxa are free from a plant 

pathogen or pathogens based on 

examination or testing of mother stock. 

The section also includes relatively 

complex sets of requirements to ensure 

that specific taxa are free from 

quarantine pests, such as the program 

for Pelargonium spp. and Solanum spp. 

grown in areas where Ralstonia 

solanacearum race 3 biovar 2 exists in 

paragraph (r) and the program for 

greenhouse-grown plants from Israel in 

paragraph (v). 

Section 319.37–6 lists taxa of seeds 

and bulbs for planting that may only be 

imported if treated in accordance with 

7 CFR part 305. Section 319.37–7 lists 

taxa of plants for planting that may be 

imported only into postentry 

quarantine, for the purposes of 

observation to determine whether they 

are infected with quarantine pests. As 

noted earlier, § 319.37–8 makes 

exceptions from its general prohibition 

on the importation of plants for planting 

in growing media; those exceptions, and 

the requirements that must be fulfilled 

in order to import the excepted taxa in 

growing media, are listed in that 

section. 

Importers and inspectors rarely need 

to, for example, find a list of plants that 

are subject to treatment; they want to 

know what restrictions apply to the 

specific plants that they wish to import 

or that have been presented for 

inspection. For port inspectors, we 

created the Plants for Planting Manual 

as a reference. This manual lists all 

types of plants for planting to which 

specific importation restrictions apply 

and either the specific restrictions 

themselves or the place in the 

regulations where the restrictions can be 

found, allowing inspectors to quickly 

look up any individual plant to 

determine what conditions apply to its 

importation. Importers and the public 

frequently use the Plants for Planting 

Manual for this purpose as well. 

We are proposing to remove all the 

restrictions on the importation of 

specific types of plants for planting from 

the regulations and instead list them in 

the Plants for Planting Manual. The 

Plants for Planting Manual would 

contain the specific restrictions 

currently in the regulations. 

As the Plants for Planting Manual and 

the regulations would indicate that the 

specific restrictions in the manual must 

be complied with in order to import the 

specified types of plants for planting 

into the United States, there would be 

no need to reproduce the prohibitions in 

§ 319.37–2(a) on plants for planting not 

imported in accordance with the 

regulations. However, the size and age 

restrictions in § 319.37–2(b) would be 

treated as restrictions on the 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24640 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

4 If the introduction of a quarantine pest into a 

new area caused us to determine that the 

importation of host taxa from that area should not 

be authorized, due to the lack of available measures 

to mitigate the quarantine pest risk, we would add 

those taxa to the NAPPRA category, possibly after 

issuing a Federal order. 

importation of specific types of plants 

for planting and moved to the Plants for 

Planting Manual, and we would include 

the prohibition against the importation 

of seeds in pulp in § 319.37–2(a) by 

adding a specific restriction to the 

Plants for Planting Manual that seeds 

may not be imported in pulp. In 

addition, the restrictions on the 

importation of specific types of plants 

for planting that are currently found in 

other subparts in 7 CFR part 319 would 

be moved to the Plants for Planting 

Manual. We are not proposing to change 

any of the specific restrictions currently 

in the plants for planting regulations as 

part of this action; this change would be 

purely administrative. 

Moving the specific restrictions to the 

Plants for Planting Manual would 

provide organizational advantages, 

allowing users of the regulations to 

more quickly and easily determine what 

specific restrictions apply to the 

importation of a plant. It also would 

allow for the creation of a process in 

which we publish notices in the Federal 

Register to take public comment on 

additions to, updates to, or removals of 

restrictions on the importation of 

specific types of plants for planting and 

make the consequent changes in the 

Plants for Planting Manual (commonly 

referred to as a notice-based process), 

rather than our current process of 

publishing rules in the Federal Register 

and updating the regulations 

themselves. 

APHIS uses notice-based processes to 

accomplish several different kinds of 

changes, including allowing the 

importation of fruits and vegetables 

subject to certain conditions (a process 

described in § 319.56–4), allowing the 

interstate movement of fruits and 

vegetables from Hawaii and U.S. 

territories subject to certain conditions 

(§ 318.13–4), adding, revising, or 

removing treatment schedules in the 

PPQ Treatment Manual (§ 305.3), and, 

as discussed earlier, adding taxa of 

plants for planting to the NAPPRA lists. 

In a typical notice-based process, an 

initial notice is published in the Federal 

Register that describes a change we are 

considering and makes a document 

providing the scientific basis for that 

change available for public comment. 

For example, when we determine it 

necessary to add a taxon to one of the 

NAPPRA lists, we publish a notice 

advising the public of our determination 

and provide a data sheet that details the 

scientific evidence APHIS evaluated in 

making the determination that the taxon 

is a quarantine pest or a host of a 

quarantine pest. We solicit public 

comments on the notice. After the 

public comment period, we publish a 

second notice that either announces the 

addition of the taxon to the NAPPRA 

list, if the comments we receive do not 

cause us to change our determination 

that the taxon is a quarantine pest or a 

host of a quarantine pest, or announcing 

that the taxon will not be added to the 

NAPPRA list. 

We added the NAPPRA provisions to 

the regulations in a final rule published 

in the Federal Register on May 27, 2011 

(76 FR 31172–31210, Docket No. 

APHIS–2006–0011) and effective on 

June 27, 2011. We expect that our use 

of these provisions will eventually 

result in a large number of taxa being 

added to the NAPPRA lists and thus not 

authorized for importation. To remove a 

NAPPRA taxon from its list, as noted 

earlier, we will complete a PRA. 

Currently, if the PRA recommended 

specific mitigations as a condition for 

the importation of the taxon, we would 

need to undertake rulemaking to amend 

the regulations to provide for such 

conditions, based on that PRA. 

Rulemaking entails many procedural 

requirements, meaning a typical 

rulemaking takes from 18 months to 3 

years to successfully complete. We 

anticipate that using a notice-based 

process to specify restrictions under 

which NAPPRA taxa could be imported 

would result in measurable time savings 

over the rulemaking process while 

continuing to allow for public input on 

the PRA, including the pest risk 

management measures it recommends. 

In addition, quarantine pest 

conditions in the world are constantly 

changing. A set of provisions currently 

approved to mitigate all quarantine pest 

risks associated with the importation of 

a specific taxon may not be suitable if 

a new quarantine pest is introduced into 

an area. If well-known measures to 

mitigate the risk associated with this 

quarantine pest exist, often the 

emergency action we take in response to 

the spread of the quarantine pest will be 

to allow the continued importation of 

host taxa from the newly infested area 

subject to those measures. However, due 

to the time-consuming nature of 

rulemaking, the regulations often do not 

reflect in a timely manner the 

imposition of those measures, although 

the Plants for Planting Manual does. 

Having a notice-based process in place 

to revise current taxon-specific 

requirement would allow us to give 

notice of our determination that revised 

restrictions are necessary and take 

public comment on our determination 

and our new requirements for the 

importation of a taxon in a timely 

manner.4

Before implementing any final rule 

with respect to this proposal, we would 

of course revise the Plants for Planting 

Manual, not only to incorporate all the 

information about restrictions on 

specific types of plants for planting that 

is currently in the regulations but also 

to make it easier to read and use as a 

reference. 

The details of the specific 

requirements we would remove from 

the regulations are discussed later in 

this document under the heading 

‘‘Restructuring of the Plants for Planting 

Regulations.’’ Here we will describe our 

proposed § 319.37–20, which would set 

out a notice-based process for adding, 

changing, or removing restrictions on 

the importation of specific types of 

plants for planting. 

Paragraph (a) of proposed § 319.37–20 

would provide that, in addition to the 

general restrictions in the plants for 

planting regulations, the Administrator 

may impose additional restrictions on 

the importation of specific types of 

plants for planting necessary to 

effectively mitigate the risk of 

introducing quarantine pests into the 

United States through the importation of 

those plants for planting. Additional 

restrictions may be placed on the 

importation of the entire plant or of 

certain plant parts, as a quarantine pest 

may not be associated with all parts of 

a plant. (Seed is the most common 

exception.) A list of the types of plants 

for planting whose importation is 

subject to additional restrictions, and 

the specific restrictions that apply to the 

importation of each type, would be 

found in the Plants for Planting Manual. 

In § 319.37–1, we would define the 

Plants for Planting Manual as the 

document that contains restrictions on 

the importation of specific types of 

plants for planting, as provided in 

§ 319.37–20, and other information 

about the importation of plants for 

planting as provided in the plants for 

planting regulations. The definition 

would indicate where the Plants for 

Planting Manual is available as well. 

Paragraph (b) of proposed § 319.37–20 

would provide that the Administrator 

may determine that it is necessary to 

add, change, or remove restrictions on 

the importation of a specific type of 

plants for planting, based on the risk of 

introducing a quarantine pest through 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24641 

the importation of that type of plants for 

planting. This text would explicitly 

indicate that the reason we would 

impose specific restrictions is a 

determination by the Administrator that 

the restrictions are necessary to 

effectively mitigate the risk of 

introducing quarantine pests into the 

United States. 

Paragraph (b) would also state that the 

Administrator will make such a 

determination based on the findings of 

a PRA or on other scientific evidence. 

Although we would normally use a PRA 

to determine what restrictions are 

appropriate for a plant’s importation, 

one example of other scientific evidence 

we might use is results from 

experiments or research conducted on a 

plant when it is imported under a 

Departmental permit. 

Paragraph (c) would describe the 

process for adding, changing, or 

removing specific restrictions. Under 

this process, we would initially publish 

in the Federal Register a notice that 

announces our determination that it is 

necessary to add, change, or remove 

restrictions on the importation of a 

specific type of plants for planting. This 

notice would make available a 

document describing the restrictions 

that the Administrator has determined 

are necessary and how these restrictions 

will mitigate the risk of introducing 

quarantine pests into the United States. 

(In a PRA, this document would 

typically be the risk management 

section of the PRA.) We would typically 

make this document available for 

comment for 60 days. This would allow 

the public to comment both on the 

quarantine pest risks we have identified 

and on the means we have chosen to 

mitigate them. 

After the close of the comment period, 

we would issue a second notice. This 

notice would inform the public of the 

specific restrictions, if any, that the 

Administrator has determined to be 

necessary in order to mitigate the risk of 

introducing quarantine pests into the 

United States through the importation of 

the type of plants for planting. In 

response to the information submitted 

in public comments, the Administrator 

might implement the restrictions 

described in the document made 

available by the initial notice, amend 

the restrictions in response to public 

comment, or determine that changes to 

existing restrictions are unnecessary. 

It is important to note that the Plants 

for Planting Manual does not just 

contain restrictions on the importation 

of plants for planting; it also contains 

explanation of and guidance on how to 

fulfill those restrictions, as well as 

instructions for how to inspect imported 

plants for planting, lists of facilities 

approved to export plants for planting 

under certain programs, and other 

information. We would not publish a 

notice in the Federal Register every 

time we determine that it is necessary 

to change something in the Plants for 

Planting Manual; we would only do so 

to add, change, or remove phytosanitary 

measures imposed on the importation of 

specific types of plants for planting to 

mitigate the risk of introducing 

quarantine pests. For example, we 

would publish a notice in the Federal 

Register to add a requirement that a 

taxon be produced in a pest-free place 

of production, but we would not 

publish a notice to update the list of 

approved pest-free places of production 

that produce the taxon for export to the 

United States. 

Paragraph (d) would address types of 

plants for planting whose importation is 

currently subject to specific restrictions. 

As noted, we would move these 

restrictions to the Plants for Planting 

Manual without changing them. 

However, we may need to change them 

in the future. Paragraph (d) would 

indicate that plants for planting whose 

importation is currently subject to plant 

type-specific restrictions in the 

regulations would continue to be subject 

to those restrictions, except as changed 

in accordance with the process specified 

in proposed paragraph (c). 

These changes would necessitate an 

update to the NAPPRA provisions in 

current § 319.37–2a. As discussed 

earlier, paragraph (e)(2) of that section 

currently indicates that, if a PRA 

conducted for removal of a taxon from 

the NAPPRA list supports a 

determination that importation of the 

taxon be prohibited or allowed subject 

to special restrictions, such as a systems 

approach, treatment, or postentry 

quarantine, APHIS will publish a 

proposed rule making the PRA available 

to the public and proposing to take the 

action recommended by the PRA. We 

discussed earlier our proposed changes 

to paragraph (e)(2) to accommodate 

moving some of the prohibited types of 

plants for planting into the NAPPRA 

category. Since we would no longer 

publish proposed rules in order to add 

restrictions on specific types of plants 

for planting, we would add a new 

paragraph (e)(3) indicating that, if the 

PRA supports a determination that 

importation of the taxon be allowed 

subject to plant type-specific 

restrictions, APHIS would publish a 

notice making the PRA available to the 

public in accordance with the process in 

proposed § 319.37–20(c). 

We are also proposing to remove 

specific exceptions to general 

restrictions from the regulations and 

update them through this notice-based 

process. For example, paragraph (e) of 

§ 319.37–8 specifies taxa that may be 

imported in specified growing media if 

they meet certain requirements. We are 

proposing to remove such lists of types 

of plants for planting from the 

regulations and instead list these plants, 

and the conditions that apply to their 

importation, in the Plants for Planting 

Manual. The specific changes we would 

make are discussed directly below. 

Restructuring of the Plants for Planting 

Regulations 

Consolidating the regulations in 7 

CFR part 319 that govern the 

importation of plants for planting, 

removing the term restricted article, 

removing the lists of prohibited taxa, 

and removing all restrictions on the 

importation of specific types of plants 

for planting would necessitate a 

restructuring of the plants for planting 

regulations. Below we present an 

outline of the revised plants for planting 

regulations and a distribution table, 

showing where the provisions of the 

regulations that we are retaining would 

be located in the restructured subpart 

and where the provisions we are moving 

would be found. 

General Requirements 

§ 319.37–1 Notice of quarantine. 

§ 319.37–2 Definitions. 

§ 319.37–3 General restrictions on the 

importation of plants for planting. 

§ 319.37–4 Taxa of plants for planting 

whose importation is not authorized 

pending pest risk analysis. 

§ 319.37–5 Permits. 

§ 319.37–6 Phytosanitary certificates. 

§ 319.37–7 Marking and identity. 

§ 319.37–8 Ports of entry: Approved ports, 

notification of arrival, inspection, and 

refusal of entry. 

§ 319.37–9 Treatment of plants for planting; 

costs and charges for inspection and 

treatment; treatments applied outside the 

United States. 

§ 319.37–10 Growing media. 

§ 319.37–11 Packing and approved packing 

material. 

Provisions for Restrictions on Specific 

Types of Plants for Planting 

§ 319.37–20 Restrictions on the importation 

of specific types of plants for planting. 

§ 319.37–21 Integrated pest risk 

management measures. 

§ 319.37–22 Trust fund agreements. 

§ 319.37–23 Postentry quarantine. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24642 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

TABLE 1—PROPOSED DISTRIBUTION OF CURRENT PLANTS FOR PLANTING REGULATIONS

Current section Current paragraph(s) Proposed location Notes 

§ 319.37 (notice of quarantine).(a) ...................................... Removed ........................... Replaced with § 319.37–1(a) and (b). 

(b) ...................................... § 319.37–8(d) 

(c) ...................................... § 319.37–8(e) 

Footnotes 1 and 2 ............. § 319.37–1(e) and (f) 

§ 319.37–1 (definitions) ....... ............................................ § 319.37–2 ......................... Definitions of terms no longer used would be moved 

to the Plants for Planting Manual; definitions of 

terms used in new provisions would be added. 

§ 319.37–2 (prohibited articles).(a) and (b) ......................... Removed ........................... Prohibited taxa would be moved to NAPPRA category 

and Plants for Planting Manual (as discussed earlier). 

(c) ...................................... § 319.37–4(f) ...................... Would be changed to reflect NAPPRA category 

§ 319.37–2a (NAPPRA) ....... ............................................ § 319.37–4 ......................... Changes to this section were discussed in detail earlier. 

§ 319.37–3 (permits) ............ (a) ...................................... § 319.37–5(a) ..................... Would be converted from a list of types of plants for 

planting that require a permit to a general requirement for a permit, with exceptions in the Plants for 

Planting Manual. 

(b) through (f) .................... § 319.37–5(b) through (f) ... Minor updates. 

§ 319.37–4 (phytosanitary 

certificates).

(a) ...................................... § 319.37–6(a) ..................... Amended to reflect changes elsewhere in section. 

(b) ...................................... § 319.37–8(c) 

(c) ...................................... Removed ........................... Would be moved to Plants for Planting Manual. 

(d) ...................................... § 319.37–6(b) .....................

(e) ...................................... Removed ........................... Would be moved to Plants for Planting Manual. 

§ 319.37–5 (inspection and 

certification).

............................................ Removed ........................... Would be moved to the Plants for Planting Manual.

§ 319.37–6 (treatment) ........ ............................................ Removed.

§ 319.37–7 (postentry quarantine).(a) ...................................... § 319.37–23(a) ................... Table of restricted taxa in (a) and list of taxa in (b) 

would be moved to the Plants for Planting Manual. 

(b) ...................................... Removed.

(c) and (d) .......................... § 319.37–23(b) and (c) ...... Paragraphs would be greatly simplified. 

(e) and (f) .......................... § 319.37–23(d) and (e) 

§ 319.37–8 (growing media) (a) ...................................... § 319.37–10(a) 

(b) ...................................... (b) ...................................... List of articles from Canada that cannot be imported in 

growing media would be moved to Plants for Planting Manual. 

(c) and (d) .......................... (c) ...................................... Approved growing media would be moved to Plants 

for Planting Manual. 

(e) ...................................... (d) ...................................... Lists of approved growing media and taxa that may be 

imported in growing media would be moved to 

Plants for Planting Manual. 

§ 319.37–9 (packing materials)............................................. § 319.37–11(b) ................... List of approved packing materials would be moved to 

the Plants for Planting Manual. 

§ 319.37–10 (marking and 

identity).

............................................ § 319.37–5 ......................... Minor changes proposed. 

§ 319.37–11 (arrival notification)............................................. § 319.37–8(b) 

§ 319.37–12 (prohibited and 

restricted articles).

............................................ § 319.37–11(a) 

§ 319.37–13 (treatment outside the United States)............................................. § 319.37–9 ......................... Minor changes proposed 

§ 319.37–14 (ports of entry) ............................................ § 319.37–8(a) ..................... List of USDA plant inspection stations would be 

moved to the Plants for Planting Manual. 

We now describe each section in our 

proposed revision of the plants for 

planting regulations, including the 

sections of the current regulations from 

which they were derived. 

Notice of Quarantine 

Proposed § 319.37–1 would provide 

official notice of the quarantine we have 

established on the importation of plants 

for planting. It would fulfill a function 

similar to that of current § 319.37(a), but 

with different wording, since the 

current language refers to prohibited 

and restricted articles. Proposed 

paragraph (a) of § 319.37–1 would 

indicate that, under section 412(a) of the 

Plant Protection Act, the Secretary of 

Agriculture may prohibit or restrict the 

importation and entry of any plant or 

plant product if the Secretary 

determines that the prohibition or 

restriction is necessary to prevent the 

introduction into the United States or 

the dissemination within the United 

States of a plant pest or noxious weed. 

Paragraph (b) would state that the 

Secretary has determined that it is 

necessary to designate the importation 

of specific taxa of plants for planting as 

NAPPRA, as provided in proposed 

§ 319.37–4. It would further state that 

the Secretary has determined that it is 

necessary to restrict the importation into 

the United States of all other plants for 

planting and to impose additional 

restrictions on the importation of 

specific types of plants for planting, in 

accordance with the plants for planting 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24643 

5 International Standard for Phytosanitary 

Measures (ISPM) No. 5. To view this and other 

ISPMs on the Internet, go to http://www.ippc.int/ 

and click on the ‘‘Adopted Standards’’ link under 

the ‘‘Core activities’’ heading. 

regulations and as described in the 

Plants for Planting Manual. 

We would add a new paragraph (c) to 

clarify that the importation of plants 

that are intended for processing is not 

regulated under the plants for planting 

regulations. As discussed earlier, some 

plants can be used either for planting or 

for processing. Importation of plants for 

processing typically poses a much lower 

risk than importation for planting, as 

most processing greatly reduces or 

eliminates the potential for pest 

introduction. Plants imported for 

processing may thus be subject to less 

stringent importation requirements than 

plants for planting. It has been our 

practice to determine whether plants are 

being imported for processing based on 

documentation accompanying the 

plants. For example, the Harmonized 

Tariff Schedule has different codes for 

plants imported as live plants and 

plants imported for processing. 

Therefore, proposed paragraph (c) 

would indicate that the importation of 

plants that are imported for processing, 

as determined by an inspector based on 

documentation accompanying the 

articles, is not subject to the plants for 

planting regulations. 

Paragraph (d) would indicate that the 

importation of taxa of plants for 

planting that are listed in 7 CFR part 

360, which imposes restrictions on the 

importation of plant taxa designated as 

noxious weeds, and part 361, which 

imposes restrictions on the importation 

of certain types of seed, is subject to the 

restrictions in those parts. This text 

would help inform readers about the 

other parts in 7 CFR chapter III that 

contain regulations that apply to the 

importation of plants for planting. The 

taxa listed in 7 CFR parts 360 and 361, 

and the restrictions that apply to their 

importation, are also listed in the Plants 

for Planting Manual, making it a 

comprehensive reference. 

Paragraphs (e) and (f) would 

incorporate into the main body of the 

regulations the information contained in 

current footnotes 1 and 2 to the subpart 

heading. Paragraph (e) would indicate 

that PPQ also enforces regulations 

promulgated under the Endangered 

Species Act of 1973 (Pub. L. 93–205, as 

amended) which contain additional 

prohibitions and restrictions on 

importation into the United States of 

plants for planting subject to the plants 

for planting regulations (see 50 CFR 

parts 17 and 23). 

Paragraph (f) would state that one or 

more common names of plants for 

planting are given in parentheses after 

most scientific names (when common 

names are known) for the purpose of 

helping to identify the plants for 

planting represented by such scientific 

names; however, unless otherwise 

specified, a reference to a scientific 

name includes all plants for planting 

within the taxon represented by the 

scientific name regardless of whether 

the common name or names are as 

comprehensive in scope as the scientific 

name. (The current footnote 2 refers to 

‘‘category’’ rather than ‘‘taxon’’; the 

latter term is more precise and is 

defined in the regulations.) 

We are also proposing to add in 

paragraph (f) an advisory that when 

restrictions apply to the importation of 

a taxon of plants for planting for which 

there are taxonomic synonyms, those 

restrictions apply to the importation of 

all the synonyms of that taxon as well. 

Synonyms are commonly listed in the 

Germplasm Research Information 

Network, which is maintained by the 

USDA’s Agricultural Research Service. 

Treating synonyms the same is our 

current practice for plants for planting, 

as calling a taxon by a synonym rather 

than the name listed in the regulations 

does not change the risk it poses, but the 

regulations do not currently reflect this 

practice. 

Definitions 

Proposed § 319.37–2 would contain 

definitions of terms used in the plants 

for planting regulations. We would 

retain as they currently appear in the 

regulations the definitions of bulb, 

earth, inspector, noxious weed, official 

control, person, plant, plant pest, Plant 

Protection and Quarantine Programs, 

planting, port of first arrival, 

preclearance, production site, 

quarantine pest, regulated plant, 

Secretary, soil, State, State Plant 

Regulatory Official, taxon, and United 

States. 

We are proposing to remove these 

definitions from the regulations: Clean 

well water, disease, Europe, indexing, 

Oceania, potable water, and Solanum 

spp. true seed. These terms relate to 

plant type-specific restrictions and, with 

the removal of those restrictions, would 

no longer be used in the regulations. 

However, we would add these 

definitions to the Plants for Planting 

Manual. 

We are also proposing to remove the 

definitions of prohibited article and 

restricted article for reasons discussed 

earlier. 

We are proposing to remove the 

definition of Deputy Administrator and 

all references to the Deputy 

Administrator in the regulations. In 

their places, we would add references to 

the Administrator. In § 319.37–2, we 

would add a definition of Administrator 

to read: ‘‘The Administrator of the 

Animal and Plant Health Inspection 

Service, United States Department of 

Agriculture, or any other employee of 

the United States Department of 

Agriculture authorized to act in his or 

her stead.’’ This would make the plants 

for planting regulations consistent with 

other subparts in part 319, which refer 

to the Administrator as the 

decisionmaking authority within 

APHIS. 

Besides the new definition of Plants 

for Planting Manual discussed earlier, 

we are proposing to add definitions of 

consignment, lot, mother stock, national 

plant protection organization (NPPO), 

place of production, and type of plants 

for planting. The proposed definition of 

consignment is based on the definition 

of that term in the International Plant 

Protection Convention’s (IPPC) Glossary 

of Phytosanitary Terms.5 The proposed 

definition reads: ‘‘A quantity of plants 

for planting being moved from one 

country to another and covered, when 

required, by a single phytosanitary 

certificate (a consignment may be 

composed of one or more lots or taxa).’’ 

We are proposing to define ‘‘lot’’ as a 

number of units of a single commodity, 

identifiable by its homogeneity of 

composition and origin, forming all or 

part of a consignment. We are also 

proposing to replace the term 

‘‘shipment’’ (as a noun) with 

‘‘consignment’’ where the former term 

appears in the regulations. 

The definition we are proposing to 

add for national plant protection 

organization (NPPO) would read: ‘‘The 

official service established by a 

government to discharge the functions 

specified by the International Plant 

Protection Convention.’’ This definition 

is also based on a definition in the IPPC 

Glossary. We would replace references 

in the regulations to ‘‘plant protection 

service’’ and similar terms with 

references to ‘‘NPPO.’’ 

These changes would make our 

regulations consistent with international 

standards. 

In this document, we have referred 

broadly to the categories of plants 

regulated in the plants for planting 

regulations as ‘‘types of plants for 

planting.’’ Many of the restrictions in 

the regulations are specific to taxa of 

plants, but others address other 

categories of plants on the basis of 

shared risk factors. For example, the 

regulations in § 319.37–4(c) allow for 

the importation of greenhouse-grown 

plants from Canada without a 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24644 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

phytosanitary certificate, provided that 

certain conditions are met. This 

program applies to any taxon of plants 

that is grown in a certified greenhouse 

in Canada; both of these factors 

(growing conditions and origin) 

contribute to the plants’ eligibility for 

the program. Similarly, many of the size 

and age restrictions in § 319.37–2(b) 

apply to broad categories of plants, such 

as naturally dwarfed trees and shrubs. 

To facilitate applying restrictions to 

specific types of plants for planting in 

accordance with the proposed 

regulations and in the Plants for 

Planting Manual, we are proposing to 

add a definition of type of plants for 

planting to the regulations. The 

definition would read: ‘‘A grouping of 

plants for planting based on shared 

characteristics such as biological traits, 

morphology, botanical nomenclature, or 

risk factors.’’ Thus, ‘‘type of plants for 

planting’’ includes shared botanical 

nomenclature but also includes any 

other shared risk factors that can serve 

as a basis for imposing restrictions on 

the importation of plants for planting. 

We welcome comment on this 

approach. 

The definitions of the other new terms 

will be discussed where they appear in 

the proposed regulations. 

Besides amending the definition of 

plants for planting as discussed earlier 

in this document, we are proposing to 

amend a few other existing definitions 

to reflect changes in this proposal. The 

definition of from states that an article 

is considered to be ‘‘from’’ any country 

or locality in which it was grown, 

except that it can be considered to be 

from Canada if certain conditions are 

fulfilled. One of the conditions is that 

the article is not prohibited nor subject 

to restrictions under certain paragraphs 

of § 319.37–5, subject to a required 

treatment under § 319.37–6, or subject 

to postentry quarantine under § 319.37– 

7. We would replace the reference to 

prohibited articles with a reference to 

plants for planting whose importation is 

NAPPRA in accordance with proposed 

§ 319.37–4. In addition, as all 

restrictions on specific types of plants 

for planting would now be found in the 

Plants for Planting Manual, we would 

update the definition to require that the 

plants for planting may not have been 

subject to certain import restrictions 

under § 319.37–20. These restrictions 

would be the same as those listed in the 

current definition of from. We would 

list those restrictions in the Plants for 

Planting Manual. We would also replace 

references to ‘‘articles’’ in this definition 

with references to ‘‘plants for planting.’’ 

We would shorten the defined term 

phytosanitary certificate of inspection to 

phytosanitary certificate, as completing 

such certificates can require much more 

than a simple inspection. The definition 

indicates that a phytosanitary certificate 

is a document related to a restricted 

article; we would amend the definition 

to indicate that it is a document related 

to a consignment of plants for planting. 

Finally, we would amend the defined 

term Spp. (species) by switching the 

order of the words, i.e., making the 

defined term Species (spp.). This would 

put the word ‘‘species’’ before its 

abbreviation, the more common way of 

presenting such information. 

General Restrictions on the Importation 

of Plants for Planting 

To help readers navigate the new 

plants for planting regulations, we 

would provide an overall guide to their 

structure in proposed § 319.37–3. This 

section would indicate that the 

importation of certain taxa of plants for 

planting is NAPPRA in accordance with 

proposed § 319.37–4. General 

restrictions that apply to the 

importation of all plants for planting 

other than those whose importation is 

NAPPRA in accordance with proposed 

§ 319.37–4 would be found in proposed 

§§ 319.37–5 through 319.37–11. 

Just as restrictions on the importation 

of specific taxa of plants for planting are 

found throughout the current 

regulations, so are restrictions on the 

importation of all or most types of 

plants for planting found throughout the 

current regulations. The goal of this 

restructuring is to group all the general 

requirements together in the regulations, 

to make it easier for readers to 

determine what requirements apply to 

all or most imported plants for planting. 

Proposed § 319.37–3 would also state 

that, in accordance with proposed 

§ 319.37–20, the Administrator may 

impose restrictions on the importation 

of specific types of plants for planting. 

These restrictions would be listed in the 

Plants for Planting Manual. (The break 

between proposed §§ 319.37–11 and 

319.37–20 is intended to emphasize the 

fact that the former would be the end of 

the general restrictions in the 

regulations, after which provisions for 

imposing restrictions on the importation 

of specific types of plants for planting 

would be found.) 

In addition, proposed § 319.37–3 

would note that additional information 

on certain restrictions on the 

importation of specific types of plants 

for planting could be found in proposed 

§§ 319.37–21 through 319.37–23. 

Although we are proposing to remove 

specific restrictions from the 

regulations, we are also proposing to 

provide general requirements for certain 

specific restrictions. Specifically, 

proposed § 319.37–21 would discuss 

integrated pest risk management 

measures; § 319.37–22 would discuss 

trust funds that may be required if 

APHIS is involved in mitigations in a 

foreign country; and § 319.37–23 would 

include the remaining postentry 

quarantine requirements. We will 

discuss these proposed sections in order 

later in this document. 

Taxa of Plants for Planting Whose 

Importation Is Not Authorized Pending 

Pest Risk Analysis 

Proposed § 319.37–4 would contain 

the NAPPRA regulations currently 

found in § 319.37–2a, with the changes 

discussed earlier in this document. 

Permits 

Proposed § 319.37–5 would include 

most of the current permit requirements 

in § 319.37–3, with changes as 

discussed below. 

Paragraph (a) of current § 319.37–3 

lists articles for which a written permit 

is required for importation. As noted 

earlier, paragraph (a)(5) of § 319.37–3 

requires lots of 13 or more articles (other 

than seeds, bulbs, or sterile cultures of 

orchid plants) from any country or 

locality except Canada to be imported 

into the United States with a written 

permit. This means that most 

consignments of plants for planting are 

imported with a permit; the exceptions 

for which a permit is not required are 

lots of 12 or fewer articles other than 

seeds, bulbs, or sterile cultures of orchid 

plants, and all lots of seeds, bulbs, or 

sterile cultures of orchid plants, that do 

not include of types of plants for 

planting addressed by the other 

subparagraphs in paragraph (a). 

We are proposing to revise current 

§ 319.37–3(a) to indicate that a permit is 

generally required for all plants for 

planting, with exceptions listed in the 

Plants for Planting Manual. Exceptions 

would be added, changed, or removed 

in accordance with proposed § 319.37– 

20. This would allow us to update the 

list of exceptions through a notice when 

necessary and take public comment on 

any changes we make. 

In addition, we would make some 

changes to the list of types of plants for 

planting that require a permit as part of 

moving this information into the plants 

for planting manual. The current list 

indicates that permits are required for 

articles subject to treatment 

requirements; articles subject to 

postentry quarantine requirements; and 

articles subject to other specific 

conditions elsewhere in the regulations 

(specifically, Solanum tuberosum true 

seed imported from Chile, Fraxinus spp. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24645 

imported from Canada, and small lots of 

seed imported without a phytosanitary 

certificate). As we are proposing to 

remove all these specific requirements 

from the regulations, we would indicate 

in the Plants for Planting Manual that a 

permit is required for any consignment 

of 12 or fewer plants for planting whose 

importation is subject to specific 

restrictions in accordance with 

proposed § 319.37–20. 

This change would mean that a 

permit would be required for any type 

of plants for planting whose importation 

is subject to specific restrictions, not 

just those currently named in the 

regulations. We believe that a permit is 

necessary as an additional safeguard for 

the importation of these plants; that 

importation has already been 

determined to pose a risk, which is why 

we have imposed specific restrictions 

on it, and the permit provides an 

additional means of communicating 

those specific restrictions to the 

importer. We expect that this change 

will have a very small impact on the 

importation of plants for planting, since 

most lots of plants for planting to which 

specific restrictions apply are composed 

of 13 or more articles and are thus 

required to be accompanied by a permit 

under paragraph (a)(5) of § 319.37–3. 

However, we invite public comment on 

the impacts of this proposed change. 

We would also add a statement in 

proposed paragraph (a)(2) that plants for 

planting whose importation is subject to 

postentry quarantine must also be 

imported under an importer postentry 

quarantine growing agreement. This 

requirement is found in § 319.37–7(a)(2) 

of the current regulations, and we 

would retain it in this proposal; we 

would add the reference here to help 

readers be aware of all the 

documentation requirements that apply 

to plants imported into postentry 

quarantine. 

The requirements currently found in 

paragraphs (a)(3), (a)(4), (a)(6), (a)(7), 

and (a)(17) through (a)(19) of § 319.37– 

3 would be moved to the Plants for 

Planting Manual, with minor changes to 

reflect the change from ‘‘restricted 

articles’’ to ‘‘plants for planting’’ 

discussed earlier. 

Paragraphs (a)(8) through (a)(16) of 

§ 319.37–3 contain requirements for 

permits for articles that are destined to 

specific States. We are not proposing to 

include these paragraphs in the Plants 

for Planting Manual because we no 

longer use permits to notify States of 

these potential importations; that is 

accomplished through an electronic 

notification system. 

Paragraph (b) of § 319.37–3 contains 

instructions on applying for a permit. 

We would include these instructions in 

paragraph (b) of § 319.37–5, but would 

update the address to which to write to 

apply for a permit. We would also 

include a Web address at which one can 

apply for a permit. With these changes, 

paragraph (b) of proposed § 319.37–5 

would require an application for a 

written permit to be submitted to PPQ 

(Animal and Plant Health Inspection 

Service, Plant Protection and 

Quarantine, Permits, Permit Unit, 4700 

River Road Unit 133, Riverdale, MD 

20737–1236) at least 30 days prior to 

arrival of the plants for planting at the 

port of entry. It would indicate that 

application forms are available without 

charge from that address or on the Web 

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

ppq_epermits.shtml. The completed 

application would have to include the 

following information: 

• Name, address, and telephone 

number of the importer; 

• The taxon or taxa and the 

approximate quantity of plants for 

planting intended to be imported. 

Current paragraph (b)(2) refers to the 

‘‘kinds (botanical designations) of 

articles intended to be imported.’’ We 

would instead refer to ‘‘taxon or taxa’’ 

to be consistent with the rest of the 

regulations; 

• Country(ies) or locality(ies) where 

grown; 

• Intended United States port of 

entry; 

• Means of transportation, e.g., mail, 

airmail, express, air express, freight, 

airfreight, or baggage; and 

• Expected date of arrival. 

Paragraphs (c) through (f) of § 319.37– 

3 contain provisions for issuing permits, 

withdrawing permits, and oral permits. 

We would retain those paragraphs 

without substantive changes in 

proposed § 319.37–5, although we 

would change references to ‘‘articles’’ to 

‘‘plants for planting’’ and references to 

the Deputy Administrator to refer to the 

Administrator. Paragraph (e) currently 

refers to articles not designated as 

required to be imported with a permit 

in § 319.37–3(a); we would amend this 

paragraph to refer to plants for planting 

not required to be imported with a 

permit in accordance with proposed 

§ 319.37–5(a), to reflect the other 

changes we have proposed. 

Phytosanitary Certificates 

Proposed § 319.37–6 would contain 

the general requirements for 

phytosanitary certificates that are 

currently found in § 319.37–4. 

Section 319.37–4 is headed 

‘‘Phytosanitary certificates of 

inspection,’’ and the introductory text of 

paragraph (a) in § 319.37–4 states that 

any restricted article offered for 

importation into the United States must 

be accompanied by a phytosanitary 

certificate of inspection. We would 

amend the section heading and this 

requirement by removing the words ‘‘of 

inspection,’’ for reasons discussed 

earlier. We would also amend paragraph 

(a) to refer to plants for planting offered 

for importation, rather than restricted 

articles. 

The introductory text of paragraph (a) 

also includes requirements for 

identification of the taxon of plants for 

planting that it accompanies, which we 

would retain. The text currently 

requires the phytosanitary certificate 

that accompanies a restricted article 

must identify the genus and species or 

cultivar of that article when the 

regulations place restrictions on 

individual species or cultivars within a 

genus. We would amend this 

requirement to indicate that such 

identification is required when the 

importation of individual species or 

cultivars within a genus is restricted in 

accordance with proposed § 319.37–20. 

The remaining identification 

requirements, for designation of 

intergeneric and interspecific hybrids, 

would remain unchanged. 

Within § 319.37–4(a), subparagraphs 

(a)(1) through (a)(4) list exceptions to 

the requirement for a phytosanitary 

certificate. Paragraphs (c), (d), and (e) of 

§ 319.37–4 set out specific requirements 

under which certain types of plants for 

planting may be imported without a 

phytosanitary certificate; these 

paragraphs cover greenhouse-grown 

plants from Canada, small lots of seed, 

and certain seeds from Canada, 

respectively. 

With the exception of the 

requirements for small lots of seed, we 

are proposing to remove these specific 

requirements from the regulations and 

instead include them in the Plants for 

Planting Manual. We would retain the 

requirements for small lots of seed 

because they do not apply to a specific 

type of plants for planting; rather, they 

limit importations of seed to quantities 

that make an extremely thorough 

inspection of the seed practical. These 

requirements would be included in 

paragraph (b) of proposed § 319.37–6, 

with minor changes to reflect new 

section designations and other changes 

proposed in this document. 

To cover the other current exceptions 

to the requirement for a phytosanitary 

certificate, paragraph (c)(1) of proposed 

§ 319.37–6 would state that the 

Administrator may authorize the 

importation of types of plants for 

planting without a phytosanitary 

certificate if the plants for planting are 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24646 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

accompanied by equivalent 

documentation agreed upon by the 

Administrator and the NPPO of the 

exporting country as sufficient to 

establish the origin, identity, and 

quarantine pest status of the plants. The 

documentation would have to be 

provided by the NPPO or refer to 

documentation of the origin, identity, 

and quarantine pest status of the plants 

for planting provided by the NPPO. The 

documentation would have to be agreed 

upon before the plants for planting are 

exported from the exporting country to 

the United States. These general 

conditions are fulfilled by each of the 

sets of provisions in the current 

regulations under which types of plants 

for planting may be imported without a 

phytosanitary certificate. In fact, these 

general conditions are necessary to 

provide the same information as would 

be provided by a phytosanitary 

certificate. 

Paragraph (c)(2) of proposed § 319.37– 

6 would indicate that the Administrator 

may impose additional restrictions on 

the importation of plants for planting 

that are not accompanied by a 

phytosanitary certificate to ensure that 

the plants are appropriately identified 

and free of quarantine pests. Paragraph 

(c)(3) would indicate that the Plants for 

Planting Manual lists plants for planting 

that are not required to be accompanied 

by a phytosanitary certificate; the 

countries from which their importation 

without a phytosanitary certificate is 

authorized; the approved 

documentation of their origin, identity, 

and quarantine pest status; and any 

additional conditions on their 

importation. 

Paragraph (c)(4) of proposed § 319.37– 

6 would indicate that types of plants for 

planting may be added to or removed 

from the list of plants for planting that 

are not required to be accompanied by 

a phytosanitary certificate in accordance 

with proposed § 319.37–20. The 

requirements for importing specific 

types of plants for planting without a 

phytosanitary certificate could also be 

changed in accordance with § 319.37– 

20. The notice published for comment 

would describe the documentation 

agreed upon by the Administrator and 

the NPPO of the exporting country and 

any additional restrictions to be 

imposed on the importation of the type 

of plants for planting. This provision 

would allow for the importation of 

plants for planting without a 

phytosanitary certificate provided the 

conditions of proposed paragraph (c)(1) 

are met, with any additional conditions 

the Administrator determines to be 

necessary under proposed paragraph 

(c)(2). Requiring plants for planting to 

be authorized for importation without a 

phytosanitary certificate in accordance 

with proposed § 319.37–20 would allow 

for public input on the change. 

Marking and Identity 

Proposed § 319.37–7 would contain 

requirements for marking and identity 

of imported plants for planting that are 

substantially identical to the 

requirements currently found in 

§ 319.37–10. As in other sections, we 

would change all references to 

‘‘restricted articles’’ to ‘‘plants for 

planting.’’ We would change a reference 

in paragraph (c) of § 319.37–10 to a 

‘‘shipment’’ of plants for planting to a 

‘‘consignment,’’ to be consistent with 

changes discussed earlier. 

Paragraphs (a) and (b) of § 319.37–10 

address importation by any means other 

than mail and by mail, respectively. 

Each requires that imported plants be 

accompanied by, among other 

information, the number of the written 

permit authorizing the importation, if 

one was issued. We are proposing to 

require instead that the number of the 

written permit authorizing the 

importation be included if a written 

permit was required under proposed 

§ 319.37–5. This change would clarify 

that all articles required to be 

accompanied by a permit must be 

marked with that permit number. 

Ports of Entry: Approved Ports, 

Notification of Arrival, Inspection, and 

Refusal of Entry 

Information about approved ports of 

entry, notification of arrival at the port 

of entry, inspection, and refusal of entry 

is currently spread among multiple 

sections in the regulations. We are 

proposing to consolidate this 

information into a new § 319.37–8 to 

make the regulations easier to use. 

Paragraph (a) of proposed § 319.37–8 

would describe approved ports of entry 

for imported plants for planting. This 

information would be taken from the 

introductory text of § 319.37–14. The 

proposed text would state that any 

plants for planting required to be 

imported under a written permit 

pursuant to proposed § 319.37–5(a), if 

not precleared, may be imported or 

offered for importation only at a USDA 

plant inspection station. 

Current § 319.37–14 also contains a 

list of USDA plant inspection stations. 

We are proposing to remove this list 

from the regulations and add it to the 

Plants for Planting Manual. Our 

decision to establish a USDA plant 

inspection station at a port of entry is 

based on the demand for inspection and 

the available facilities; public input on 

adding or removing USDA plant 

inspection stations would not be 

constructive, and in fact past additions 

to the list of USDA plant inspection 

stations have not received any public 

comment. Accordingly, as part of 

moving the introductory text of 

§ 319.37–14 into proposed § 319.37– 

8(a), we would amend that text to 

indicate the USDA plant inspection 

stations are listed in the Plants for 

Planting Manual. The other provisions 

would remain unchanged, except to 

change from ‘‘restricted articles’’ to 

‘‘plants for planting.’’ 

Plants for planting that are not 

required to be imported under a written 

permit pursuant to § 319.37–5(a) would 

be allowed to be imported or offered for 

importation at any Customs designated 

port of entry. Exceptions, if any, would 

be listed in § 330.104. Plants for 

planting that are required to be 

imported under a written permit that are 

also precleared in the country of export 

would not be required to enter at an 

inspection station and may enter 

through any Customs port of entry. 

Exceptions, if any, would be listed in 

§ 330.104. These provisions are 

unchanged from current § 319.37–14. 

Paragraph (b) of proposed § 319.37–8 

would include the information in 

current § 319.37–11 regarding notice of 

arrival. It would state that, promptly 

upon arrival of any plants for planting 

at a port of entry, the importer shall 

notify PPQ of the arrival by such means 

as a manifest, Customs entry document, 

commercial invoice, waybill, a broker’s 

document, or a notice form provided for 

that purpose. 

Paragraph (c) of proposed § 319.37–8 

would include the provisions currently 

in § 319.37–4(b) regarding inspection 

and treatment. It would state that any 

plants for planting may be sampled and 

inspected by an inspector at the port of 

first arrival and/or under preclearance 

inspection arrangements in the country 

in which the plants for planting were 

grown, and must undergo treatment in 

accordance with 7 CFR part 305 if 

treatment is ordered by the inspector. 

(The regulations currently state that 

plants for planting must undergo any 

treatment contained in the 

phytosanitary treatment regulations in 7 

CFR part 305 that is ordered by the 

inspector, but part 305 no longer 

contains treatments; instead, it contains 

general requirements for performing 

treatments, while specific treatments are 

found in the PPQ Treatment Manual.) 

Any plants for planting found upon 

inspection to contain or be 

contaminated with quarantine pests that 

cannot be eliminated by treatment 

would be denied entry at the first 

United States port of arrival and would 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24647 

have to be destroyed or shipped to a 

point outside the United States. 

Paragraphs (d) and (e) of proposed 

§ 319.37–8 would include the 

provisions currently in § 319.37(b) and 

(c). Under paragraph (d), the importer of 

any plants for planting denied entry for 

noncompliance with the regulations 

would have to, at the importer’s expense 

and within the time specified in an 

emergency action notification (PPQ 

Form 523), destroy, ship to a point 

outside the United States, treat in 

accordance with 7 CFR part 305, or 

apply other safeguards to the plants for 

planting, as prescribed by an inspector, 

to prevent the introduction into the 

United States of quarantine pests. In 

choosing which action to order and in 

setting the time limit for the action, the 

inspector would consider the degree of 

pest risk presented by the plant pest 

associated with the plants for planting, 

whether the plants for planting are a 

host of the pest, the types of other host 

materials for the pest in or near the port, 

the climate and season at the port in 

relation to the pest’s survival range, and 

the availability of treatment facilities for 

the plants for planting. 

As described, the regulations 

governing the handling of articles that 

are inspected and found to require 

treatment are slightly different from the 

regulations governing the handling of 

articles that are denied entry for 

noncompliance with the regulations. We 

are proposing to retain the two sets of 

provisions, but we are considering 

harmonizing them in the future. 

Under paragraph (e) of proposed 

§ 319.37–8, which is drawn from current 

§ 319.37(c), no person would be allowed 

to remove any plants for planting from 

the port of first arrival unless and until 

notice is given to the collector of 

customs by the inspector that the plants 

for planting has satisfied all 

requirements of the regulations. 

Treatment of Plants for Planting; Costs 

and Charges for Inspection and 

Treatment; Treatments Applied Outside 

the United States 

Proposed § 319.37–9 would include 

various provisions of the current 

regulations that deal with treatments. 

These provisions are mostly taken from 

current § 319.37–13. 

Paragraph (a) of proposed § 319.37–9 

is drawn from current paragraph (a) of 

§ 319.37–13. It would state that the 

services of a Plant Protection and 

Quarantine inspector during regularly 

assigned hours of duty and at the usual 

places of duty shall be furnished 

without cost to the importer. No charge 

would be made to the importer for 

Government-owned or -controlled 

special inspection facilities and 

equipment used in treatment, but the 

inspector may require the importer to 

furnish any special labor, chemicals, 

packing materials, or other supplies 

required in handling an importation. 

PPQ would not be responsible for any 

costs or charges, other than those 

indicated in proposed § 319.37–9. 

Most of paragraph (b) of proposed 

§ 319.37–9 is drawn from current 

paragraph (b) of § 319.37–9, but the first 

sentence of proposed paragraph (b) 

incorporates a requirement currently 

found in § 319.37–6(b). That paragraph 

requires seeds and bulbs treated within 

the United States to be treated at the 

time of importation into the United 

States. Among the various types of 

plants for planting, only seeds and bulbs 

are routinely subjected to phytosanitary 

treatment, as treatments typically cause 

significant mortality in other types of 

plants for planting. However, our policy 

has been to require treatment at the time 

of importation for any plants for 

planting that require treatment, not just 

seeds and bulbs, since the movement of 

potentially infested plants for planting 

within the United States could be a 

pathway for the introduction of 

quarantine pests. To promote clarity, we 

would amend proposed paragraph (b) to 

indicate that any treatment performed in 

the United States on plants for planting 

must be performed at the time of 

importation into the United States, not 

just treatments on seeds and bulbs. 

Paragraph (b) would also indicate that 

treatment would be performed by an 

inspector or under an inspector’s 

supervision at a government-operated 

special inspection facility, except that 

an importer may have such treatment 

performed at a nongovernmental facility 

if the treatment is performed at 

nongovernment expense under the 

supervision of an inspector and in 

accordance with 7 CFR part 305 and in 

accordance with any treatment required 

by an inspector as an emergency 

measure in order to prevent the 

dissemination of any quarantine pests. 

However, treatment could be performed 

at a nongovernmental facility only in 

cases of unavailability of government 

facilities and only if, in the judgment of 

an inspector, the plants for planting can 

be transported to such nongovernmental 

facility without the risk of introduction 

into the United States of quarantine 

pests. 

Paragraph (c) of proposed § 319.37–9 

would be drawn from current paragraph 

(c) of § 319.37–13. It would require any 

treatment performed outside the United 

States to be monitored and certified by 

an APHIS inspector or an official from 

the NPPO of the exporting country. If 

monitored and certified by an official of 

the NPPO of the exporting country, then 

a phytosanitary certificate would have 

to be issued with the following 

declaration: ‘‘The consignment of (fill in 

taxon) has been treated in accordance 

with 7 CFR part 305.’’ (We are 

proposing to replace the term ‘‘botanical 

name’’ in the current text with the term 

‘‘taxon.’’) During the entire interval 

between treatment and export, the 

consignment would have to be stored 

and handled in a manner that prevents 

any infestation by quarantine pests. 

Growing Media 

Proposed § 319.37–10 would set out 

requirements with respect to the 

importation of plants for planting in 

growing media. It would be based on 

current § 319.37–8, but we would revise 

the current regulations to reflect the 

removal of restrictions on the 

importation of specific types of plants 

for planting from the regulations and to 

add a notice-based process for updating 

the list of approved growing media. 

Paragraph (a) of proposed § 319.37–10 

would require plants for planting at the 

time of importation or offer for 

importation into the United States to be 

free of sand, soil, earth, and other 

growing media, except as provided in 

the remainder of the section. 

Paragraph (b) of § 319.37–8 currently 

states that a restricted article from 

Canada may be imported in any growing 

medium, except that a restricted article 

from Newfoundland or from that 

portion of the Municipality of Central 

Saanich in the Province of British 

Columbia east of the West Saanich Road 

may only be imported in an approved 

growing medium if the phytosanitary 

certificate accompanying it contains an 

additional declaration that that the 

plants were grown in a manner to 

prevent infestation by potato cyst 

nematodes. Articles imported from 

Canada are generally exempt from the 

prohibition on importation with 

growing media because the pest risks in 

the United States and Canada are 

similar. 

We are proposing to revise this 

paragraph to remove the specific 

restrictions on plants for planting grown 

in certain areas in Canada. Instead, 

proposed paragraph (b) would state that 

plants for planting from Canada may be 

imported in any growing medium, 

except as restricted in the Plants for 

Planting Manual. Restrictions on 

growing media for specific types of 

plants for planting imported from 

Canada would be added, changed, or 

removed in accordance with proposed 

§ 319.37–20. Using the notice-based 

process to update these restrictions 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24648 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

would provide flexibility and allow us 

to respond to changing pest conditions 

more quickly. 

Paragraph (c) of § 319.37–8 allows a 

restricted article growing solely in agar 

or in other agar-like tissue culture 

medium to be imported established in 

such growing media. Paragraph (d) 

allows epiphytic plants (including 

orchid plants) established solely on tree 

fern slabs, coconut husks, coconut fiber, 

new clay pots, or new wooden baskets 

to be imported on such growing media. 

New wooden baskets must meet all 

applicable requirements in §§ 319.40–1 

through 319.40–11, which contain 

requirements for the importation of 

wood. 

We are proposing to remove these 

specific requirements and instead 

generally provide, in proposed 

paragraph (c), that certain types of 

plants for planting growing solely in 

certain growing media listed in the 

Plants for Planting Manual may be 

imported established in such growing 

media. We would state that the 

Administrator has determined that the 

importation of the specified types of 

plants for planting in these growing 

media does not pose a risk of 

introducing quarantine pests into the 

United States, thus communicating the 

condition for allowing types of plants 

for planting to be imported in growing 

media without further restrictions. 

Proposed paragraph (c) would also 

provide that, if we determine that a new 

growing medium may be added to the 

list of growing media in which imported 

plants for planting may be established, 

or that a growing medium currently 

listed for such purposes is no longer 

suitable for establishment of imported 

plants for planting, we will publish in 

the Federal Register a notice that 

announces our determination and 

requests comment on the change. In our 

notice, we will provide for a public 

comment period, typically 60 days. 

After the close of the comment period, 

we will publish another notice 

informing the public regarding our 

decision on the change to the list of 

growing media in which imported types 

of plants for planting may be 

established. Establishing this process 

would allow us to quickly approve 

growing media or revoke their approval, 

depending on changing scientific 

information. 

Paragraph (e) of § 319.37–8 lists 

several taxa of plants for planting that 

may be imported in certain approved 

growing media subject to conditions 

designed to prevent their infestation 

with quarantine pests. We are proposing 

to remove these specific requirements 

from the regulations. In their place, 

proposed paragraph (d) would state that 

certain types of plants for planting, as 

listed in the Plants for Planting Manual, 

may be imported when they are 

established in a growing medium 

approved by the Administrator and they 

are produced in accordance with 

additional requirements specified in the 

Plants for Planting Manual. (In addition 

to changing the provisions currently in 

paragraph (e), this would also allow for 

changes to the lists of plants for planting 

allowed to be imported in approved 

growing media that are currently found 

in paragraphs (c) and (d) of § 319.37–8.) 

Changes to the list of plants for planting 

that may be imported in growing media, 

and to the requirements for the 

importation of those plants for planting, 

would be made in accordance with 

§ 319.37–20. 

Packing and Approved Packing Material 

Proposed § 319.37–11 would set out 

requirements for packing imported 

plants for planting and for their 

importation in packing material. 

Packing material is distinguished from 

growing media in that the plant is not 

rooted in packing material and the 

plant’s roots are easily removed from 

packing material for inspection. This 

proposed section incorporates 

requirements from current §§ 319.37–9 

and 319.37–12. 

Paragraph (a) of proposed § 319.37–11 

would indicate that plants for planting 

for importation into the United States 

must not be packed in the same 

container as plants for planting whose 

importation into the United States is 

NAPPRA in accordance with proposed 

§ 319.37–4. Currently, § 319.37–12 

prohibits restricted articles from being 

imported into the United States in the 

same container as prohibited articles; 

we propose to update this section to use 

the terminology established elsewhere 

in this proposal. 

Paragraph (b) of proposed § 319.37–11 

would be based on current § 319.37–9, 

which contains a list of approved 

packing materials. However, we would 

remove the list of approved packing 

materials from the regulations. Instead, 

proposed paragraph (b) would provide 

that any plants for planting at the time 

of importation or offer for importation 

into the United States shall not be 

packed in a packing material unless the 

plants were packed in the packing 

material immediately prior to shipment; 

such packing material is free from sand, 

soil, or earth (except as designated in 

the Plants for Planting Manual); has not 

been used previously as packing 

material or otherwise; and is approved 

by the Administrator as not posing a 

risk of introducing quarantine pests. 

Approved packing materials (and the 

sand that can be found on approved 

packing material) would be listed in the 

Plants for Planting Manual. There is a 

great diversity of packing materials that 

do not support the development of 

quarantine pests; allowing the 

Administrator to approve such packing 

material, rather than going through the 

rulemaking process to list new packing 

material in the regulations, will make it 

easier for importers to use newly 

available, risk-free packing materials. 

Paragraph (c) of proposed § 319.37–11 

would set out our process for changing 

the list of approved packing materials. 

Similar to the process for changing the 

list of approved growing media, 

proposed paragraph (c) would provide 

that, if we determine that a new packing 

material may be added to the list of 

approved packing materials, or that a 

packing material currently listed should 

no longer be approved, we will publish 

in the Federal Register a notice that 

announces our determination and 

requests comment on the change. In our 

notice, we will provide for a public 

comment period, typically of 60 days. 

After the close of the comment period, 

we will publish another notice 

informing the public regarding our 

decision on the change to the list of 

approved packing materials in which 

imported types of plants for planting 

may be established. Establishing this 

process would allow us to quickly 

approve packing materials or revoke 

their approval, depending on changing 

scientific information. 

Integrated Pest Risk Management 

Measures 

We have already discussed proposed 

§ 319.37–20, which would set out the 

process for adding, changing, or 

removing restrictions on the importation 

of specific types of plants for planting. 

We are proposing to include in our 

revised regulations three sections that 

would set out procedures for certain 

plant type-specific restrictions. 

Proposed § 319.37–21 would set out 

general requirements for the 

development of integrated pest risk 

management measures, when we 

determine that such measures are 

necessary to mitigate the risk associated 

with the importation of a specific type 

of plants for planting. We currently have 

several programs in the regulations that 

use integrated pest risk management 

measures in order to ensure that specific 

types of plants for planting are imported 

free of a quarantine pest or pests. The 

program in § 319.37–5(r) for the 

importation of Pelargonium spp. and 

Solanum spp. from areas where R. 

solanacearum race 3 biovar 2 is present 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24649 

6Available at http://www.nappo.org/en/data/ 

files/download/PDF/RSPM24-16-10-05-e.pdf. 

is one example. It incorporates 

requirements for ongoing testing for that 

pathogen, construction of production 

sites to prevent the pathogen from 

entering from outside sources such as 

water or workers’ clothing, disinfection 

of equipment used in the production 

site, ensuring that growing media is free 

of the pathogen, training of production 

site personnel, remedial measures in 

case the pathogen is detected, and 

phytosanitary certification. 

An example of a program focused on 

an insect pest is the program in 

§ 319.37–5(v) for the importation of 

plants for planting from Israel, which is 

designed to prevent the introduction of 

Spodoptera littoralis and other 

quarantine pests. This program includes 

requirements for registration of 

production sites, construction of 

production sites to prevent the 

introduction of S. littoralis, regular 

inspections for the pest, remedial 

measures in case the pest is detected, 

and phytosanitary certification. 

Although we are proposing to move 

the requirements for these specific 

programs from the regulations to the 

Plants for Planting Manual, we believe 

it will benefit stakeholders and other 

interested parties to see what general 

provisions we would use to develop 

such programs in the future. The 

provisions we are proposing to include 

in § 319 37–21 are based on Regional 

Standard for Phytosanitary Measures 

(RSPM) No. 24 6 of the North American 

Plant Protection Organization, of which 

APHIS is a member, and are consistent 

with the IPPC’s ISPM No. 36; both of 

these standards address plants for 

planting. 

In the past, we have referred to these 

programs as ‘‘systems approaches.’’ We 

are proposing to use the term 

‘‘integrated pest risk management 

measures’’ in the plants for planting 

regulations to be consistent with RSPM 

No. 24 and industry terminology and to 

emphasize the fact that such programs 

involve multiple measures, each of 

which is necessary for a comprehensive 

approach to managing pest risk. 

The introductory text of proposed 

§ 319.37–21 would indicate that, if a 

type of plants for planting is a host of 

a quarantine pest or pests, APHIS may 

require the type to be produced in 

accordance with integrated pest risk 

management measures as a condition of 

importation. Proposed § 319.37–21 

would set out a general framework for 

integrated pest risk management 

measures. 

When appropriate, we would require 

a type of plants for planting to be 

imported subject to integrated pest risk 

management measures that mitigate the 

quarantine pest risks associated with 

that type of plants for planting through 

the process described in § 319.37–20. In 

the documentation accompanying the 

notice we would publish under 

§ 319.37–20, we would specify the 

quarantine pests identified and the 

specific measures we would use to 

manage them. Those measures would be 

consistent with the general measures 

described in proposed § 319.37–21, but 

would be targeted to the identified 

quarantine pests. 

The NAPPO standard and our 

proposed regulations describe the 

responsibilities of all parties involved in 

integrated pest risk management 

measures: The place of production, the 

NPPO of the exporting country, plant 

brokers, and the NPPO of the importing 

country (i.e., APHIS). We are not 

proposing to include most of the 

information in RSPM No. 24 with 

respect to our responsibilities, as it is 

not necessary to specify the actions we 

will take in the regulations. However, 

the proposed regulations provide us 

with the authority to take any action we 

may deem to be necessary. As a 

practical matter, we concur with RSPM 

No. 24 and would take action in 

accordance with its principles when 

developing and implementing 

integrated pest risk management 

measures. 

Paragraph (a) of proposed § 319.37–21 

would discuss the responsibilities of the 

place of production. RSPM No. 24 uses 

‘‘place of production’’ as that term is 

defined in the IPPC Glossary. 

Accordingly, we would add to the 

regulations a definition of place of 

production, which would be consistent 

with the definition of that term in the 

IPPC Glossary. The definition would 

read: ‘‘Any premises or collection of 

fields operated as a single production or 

farming unit. This may include a 

production site that is separately 

managed for phytosanitary purposes.’’ 

The introductory text of paragraph (a) 

would indicate that, for integrated pest 

risk management measures, the place of 

production would be responsible for 

identifying, developing, and 

implementing procedures that meet the 

requirements of both the NPPO of the 

exporting country and APHIS. 

Participants in the export program 

would have to be approved by the NPPO 

or its designee and APHIS. Approval 

would be conferred by the NPPO or its 

designee and APHIS after the 

participant meets the conditions 

required for integrated pest risk 

management. Approval would be 

withdrawn if the participant fails to 

meet the conditions at any time. All 

documentation required under 

paragraph (a)(5) of proposed § 319.37– 

21 would be maintained by the 

exporting place of production and made 

available to official representatives of 

the NPPO of the exporting country and 

APHIS upon request. The place of 

production would have to be open to 

necessary and reasonable audit, 

monitoring, and evaluation of 

compliance by the NPPO of the 

exporting country and APHIS. The 

management of the place of production 

would be responsible for complying 

with the integrated pest risk 

management measures. Management 

would have to specify the roles and 

responsibilities of its personnel to 

perform program activities. The place of 

production would have to notify the 

NPPO of the exporting country of 

deficiencies detected during internal 

audits. The NPPO of the exporting 

country would be responsible for 

ensuring that the place of production is 

in compliance with the integrated pest 

risk management measures. These 

requirements are all necessary to 

properly establish accountability for the 

successful implementation of integrated 

pest risk management measures by the 

place of production. 

The most important requirement for 

the place of production is its program to 

manage pests. Under proposed 

paragraph (a)(1), the place of production 

would have to develop and implement 

an approved pest management program 

that contains ongoing pest monitoring 

and procedures for the exclusion and 

control of plant pests. The place of 

production would have to obtain 

material used to produce plants for 

planting from sources that are free of 

quarantine pests and that are approved 

by the NPPO of the exporting country 

and APHIS. All sources of plants for 

planting and the phytosanitary status of 

those plants would have to be welldocumented, and the program for 

producing plants for planting would 

have to be carefully monitored. 

Under proposed paragraph (a)(2), a 

training program approved by the NPPO 

of the exporting country and APHIS 

would have to be established, 

documented, and regularly conducted at 

the place of production. The training 

program would have to ensure that all 

those involved in the export program 

possess specific knowledge related to 

the relevant components of the program 

and a general understanding of its 

requirements. This requirement would 

ensure that the pest management 

program is properly implemented. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24650 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

To ensure that the pest management 

program is effective, proposed 

paragraph (a)(3) would require the place 

of production to perform, or designate 

parties to perform internal audits that 

ensure that a plan approved and 

documented by APHIS and the NPPO of 

the exporting country is being followed 

and is achieving the appropriate level of 

pest management. 

Proposed paragraph (a)(4) would 

require the place of production to 

implement a procedure approved by 

APHIS and the NPPO of the exporting 

country or its designee that documents 

and identifies plants from propagation 

through harvest and sale to ensure that 

plants can be traced forward and back 

from the place of production. The 

system would at a minimum have to 

account for: 

• The origin and pest status of mother 

stock. To clarify the meaning of this 

term, we would define mother stock in 

§ 319.37–2 as a group of plants from 

which plant parts are taken to produce 

new plants; 

• The year of propagation and the 

place of production of all plant parts 

that make up the plants for planting 

intended for export; 

• Geographic location of the place of 

production; 

• Location of plants for planting 

within the place of production; 

• The plant taxon; and 

• The purchaser’s identity. 

This requirement would ensure that, 

in the event of a pest problem, all 

responsible parties could quickly 

identify the source and potential 

distribution of the problem. 

To ensure a common understanding 

of the integrated measures, under 

proposed paragraph (a)(5), the place of 

production would be required to 

develop a manual approved by the 

NPPO of the exporting country and 

APHIS that guides the place of 

production’s operation and that 

includes the following components: 

• Administrative procedures 

(including roles and responsibilities and 

training procedures); 

• Pest management plan; 

• Place of production internal audit 

procedures; 

• Management of noncompliant 

product or procedures; 

• Traceability procedures; and 

• Recordkeeping systems. 

Proposed paragraph (a)(6) would 

require the place of production to 

maintain records on its premises as 

specified by APHIS and the NPPO of the 

exporting country. These records would 

have to be made available to APHIS and 

the NPPO of the exporting country upon 

request. These documents would 

include all the elements described in 

proposed paragraph (a) and copies of all 

internal and external audit documents 

and reports. 

Proposed paragraph (b) would 

describe the joint responsibilities of 

APHIS and the NPPO of the exporting 

country. Under this paragraph, APHIS 

and the NPPO of the exporting country 

would be responsible for collaborating 

to establish program requirements, 

including workplans and compliance 

agreements as necessary, for recognizing 

and implementing particular import 

programs. Technically justified 

modifications to the program would be 

negotiated. The administration of 

program requirements would include 

such elements as clarification of 

terminology, testing and retesting 

requirements, eligibility, the 

nomenclature of certification levels, 

horticultural management, isolation and 

sanitation requirements, inspection, 

documentation, identification and 

labeling, quality assurance, 

noncompliance and remedial measures, 

and postentry quarantine requirements. 

The criteria for approving, suspending, 

removing, and reinstating approval for a 

particular program would be jointly 

developed and agreed upon by APHIS 

and the NPPO of the exporting country. 

Information would be exchanged 

between APHIS and the NPPO of the 

exporting country through officially 

designated contact points. 

Proposed paragraph (c) would 

describe the responsibilities of the 

NPPO of the exporting country. 

Paragraph (c)(1) would require the 

NPPO of the exporting country to 

provide sufficient information to APHIS 

to support the evaluation and 

acceptance of export programs. This 

could include: 

• Specific identification of the 

commodity, place of production, and 

expected volume and frequency of 

consignments; 

• Relevant production, harvest, 

packing, handling, and transport details; 

• Pests associated with the plant 

including prevalence, distribution, and 

damage potential; 

• Risk management measures 

proposed for a pest management 

program; and 

• Relevant efficacy data. 

Proposed paragraph (c)(2) would 

require a phytosanitary certificate to be 

issued by the NPPO of the exporting 

country unless APHIS and the NPPO of 

the exporting country agree to use other 

documentation in accordance with 

proposed § 319.37–6(c). 

Under proposed paragraph (c)(3), 

other responsibilities of the NPPO of the 

exporting country would include: 

• Establishing and maintaining 

compliance agreements as necessary; 

• Oversight and enforcement of 

program provisions; 

• Arrangements for monitoring and 

audit; and 

• Maintaining appropriate records. 

Paragraph (d) of proposed § 319.37–21 

would address the responsibilities of 

plant brokers. Persons trading in plants 

for planting intended for export without 

growing the plants (referred to as plant 

brokers) would have to be approved by 

the NPPO of the exporting country or its 

designee. The list of plant brokers 

would have to be provided to APHIS 

upon request. Approval would only be 

conferred by the NPPO or its designee 

after the participant meets the 

requirements of proposed paragraph (d). 

Approval would have to be withdrawn 

if the participant fails to meet the 

conditions at any time. Plant brokers 

would have to ensure the traceability of 

export consignments to an approved 

place of production or production site. 

Brokers would have to maintain the 

phytosanitary status of the plants in a 

manner equivalent to an approved place 

of production from purchase, storage, 

and transportation to the export 

destination. Plant brokers would have to 

document these processes for verifying 

status and maintaining traceability. 

Paragraph (e) of proposed § 319.37–21 

would set out requirements for external 

audits. APHIS and the NPPO of the 

exporting country would agree to the 

requirements for auditing. 

Under proposed paragraph (e)(1), 

APHIS would evaluate the integrated 

pest risk management measures of the 

NPPO of the exporting country before 

acceptance. This could consist of 

documentation review, site visits, and 

inspection and testing of plants 

produced under the system. Following 

approval, APHIS or its designee would 

monitor and periodically audit the 

system to ensure that it continues to 

meet the stated objectives. Audits would 

include inspection of imported plants 

for planting, site visits, and review of 

the integrated pest risk management 

measures and internal audit processes of 

the place of production and the NPPO 

of the exporting country. 

Under proposed paragraph (e)(2), the 

NPPO of the exporting country would 

arrange for audits of the exporting 

system. Audits would be conducted by 

the NPPO or its designee and may 

consist of inspection and testing of 

plants for planting and the 

documentation and management 

practices as they relate to the program. 

Audits would verify that: 

• The places of production in the 

program are free of quarantine pests; 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24651 

• Program participants are complying 

with the specified standards; 

• The integrated pest management 

measures continue to meet APHIS 

requirements; and 

• Arrangements with designees are 

complied with. 

Paragraph (f) of proposed § 319.37–21 

would set out procedures in case of 

noncompliance. Proposed paragraph 

(f)(1) would require the exporting NPPO 

to notify APHIS of noncompliance 

within the integrity of the system or 

noncompliance by a place of production 

that affects the phytosanitary integrity of 

the plants for planting. The 

requirements for notification would be 

determined between the NPPO of the 

exporting country and APHIS. 

Proposed paragraph (f)(2) would 

indicate that regulatory responses to 

program failures would be based on 

existing bilateral agreements. 

Contingency plans could be established 

in advance to ensure that alternative 

measures are available in the event that 

all or part of a program fails. APHIS 

would specify the consequences of 

noncompliance to the NPPO of the 

exporting country. The NPPO would 

have to specify the consequences of 

noncompliance to the participants in 

the program. These could vary 

depending on the nature and severity of 

the infraction. In addition, remedial 

measures would be specified to enable 

a suspended or decertified place of 

production or plant broker to become 

eligible for reinstatement or 

recertification. 

Proposed paragraph (f)(3) would 

require places of production or plant 

brokers that do not meet the conditions 

of the program to be suspended. Plants 

for planting could not be exported from 

a place of production or a plant broker 

that has failed to meet the program 

requirements. 

Proposed paragraph (f)(4) would 

require the effectiveness of remedial 

measures taken to be verified before 

reinstatement to the program by the 

exporting NPPO, and where 

appropriate, by APHIS. 

As can be seen, the requirements in 

proposed § 319.37–21 are general 

requirements that could be adapted to 

any quarantine pests and any measures 

used to control or exclude them from 

places of production. They would 

provide a comprehensive framework for 

the development of specific 

requirements. We invite public 

comment on whether other aspects of 

implementing integrated pest risk 

management measures should be 

included in the regulations. 

Trust Fund Agreements 

Some of the tasks undertaken in 

support of integrated pest risk 

management measures would require 

APHIS to perform phytosanitary 

services (for example, audits) in the 

exporting country. To ensure that 

APHIS is properly reimbursed for its 

services, proposed § 319.37–22 would 

provide for the creation of trust funds in 

order to fund such activities, similar to 

those currently required in paragraphs 

(r)(3)(xv) and (v)(7) of § 319.37–5. 

Under proposed § 319.37–22, if 

APHIS personnel need to be physically 

present in an exporting country or 

region to facilitate the exportation of 

plants for planting and APHIS services 

are to be funded by the NPPO of the 

exporting country or a private export 

group, then the NPPO or the private 

export group would have to enter into 

a trust fund agreement with APHIS that 

is in effect at the time APHIS’ services 

are needed. Under the agreement, the 

NPPO of the exporting country or the 

private export group would be required 

to pay in advance all estimated costs 

that APHIS expects to incur in 

providing inspection services in the 

exporting country. These costs would 

include administrative expenses 

incurred in conducting the services and 

all salaries (including overtime and the 

Federal share of employee benefits), 

travel expenses (including per diem 

expenses), and other incidental 

expenses incurred by the inspectors in 

performing services. The agreement 

would require the NPPO of the 

exporting country or region or a private 

export group to deposit a certified or 

cashier’s check with APHIS for the 

amount of those costs, as estimated by 

APHIS. The agreement would have to 

specify that, if the deposit is not 

sufficient to meet all costs incurred by 

APHIS, the NPPO of the exporting 

country or a private export group must 

deposit with APHIS, before the services 

will be completed, a certified or 

cashier’s check for the amount of the 

remaining costs, as determined by 

APHIS. After a final audit at the 

conclusion of each shipping season, any 

overpayment of funds would be 

returned to the NPPO of the exporting 

country or region or a private export 

group, or held on account. 

Postentry Quarantine 

Proposed § 319.37–23 would contain 

requirements for postentry quarantine. 

Under current § 319.37–7, certain taxa 

of plants for planting are required to be 

grown in postentry quarantine in order 

to determine whether they are infested 

with quarantine pests, typically 

pathogens. Section 319.37–7 also 

provides a framework of requirements 

under which postentry quarantine must 

be conducted and completed. We would 

move the lists of taxa that must be 

grown in postentry quarantine that are 

currently found in paragraphs (a) and 

(b) of § 319.37–7 to the Plants for 

Planting Manual. However, we would 

retain much of the framework in the 

regulations, since it is generally 

applicable to growing plants for 

planting in postentry quarantine. 

Paragraph (a) of proposed § 319.37–23 

would contain the requirements 

currently in the introductory text of 

paragraph (a) of § 319.37–7, before the 

table of restricted articles for which 

postentry quarantine is required. The 

paragraph would explain that one 

specific restriction that may be placed 

upon the importation of a type of plants 

for planting in accordance with 

proposed § 319.37–20 is that it be grown 

in postentry quarantine. Plants for 

planting grown in postentry quarantine 

could be grown under postentry 

quarantine conditions specified in 

paragraphs (c) and (d) of proposed 

§ 319.37–23, and could be imported or 

offered for importation into the United 

States only: 

• If destined for a State that has 

completed a State postentry quarantine 

agreement with APHIS; 

• If an importer postentry quarantine 

growing agreement has been completed 

and submitted to PPQ. (This agreement 

is currently referred to simply as a 

‘‘postentry quarantine agreement,’’ but 

we believe specifying that it is the 

importer’s agreement would better 

differentiate it from the State postentry 

quarantine agreement.) The agreement 

would have to be signed by the person 

(the importer) applying for a written 

permit for importation of the plants for 

planting in accordance with proposed 

§ 319.37–5; and, 

• If PPQ has determined that the 

completed postentry quarantine growing 

agreement fulfills the applicable 

requirements of proposed § 319.37–23 

and that services by State inspectors are 

available to monitor and enforce the 

postentry quarantine. 

Paragraph (b) of proposed § 319.37–23 

would set out requirements for State 

postentry quarantine agreements. Such 

requirements are currently found in 

paragraph (c) of § 319.37–7. We believe 

that there is no need to retain the level 

of detail regarding such agreements that 

is found in current paragraph (c), which 

sets out extensive requirements that 

States must meet in order to be sites for 

postentry quarantine; for example, the 

paragraph includes detailed 

requirements for State laws and 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24652 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

regulations, duties of State inspectors, 

services APHIS agrees to provide, and 

provisions for termination of a State 

postentry quarantine agreement. Current 

paragraph (c) also lists the States with 

active State postentry quarantine 

agreements. 

Although we continue to believe that 

all these requirements are necessary, we 

believe they would be better addressed 

in the agreement itself, rather than 

detailed in the regulations. This would 

allow us to tailor State postentry 

quarantine agreements to specific 

circumstances and to simplify the 

regulations. Accordingly, proposed 

paragraph (b) would state only that 

plants for planting required to undergo 

postentry quarantine in accordance with 

proposed § 319.37–23 may only be 

imported if destined for postentry 

quarantine growing in a State which has 

entered into a written agreement with 

APHIS, signed by the Administrator or 

his or her designee and by the State 

Plant Regulatory Official (SPRO). 

Proposed paragraph (b) would note that, 

in accordance with the laws of 

individual States, inspection and other 

postentry quarantine services provided 

by a State may be subject to charges 

imposed by the State. 

Rather than include the list of States 

that have entered into a postentry 

quarantine agreement in the regulations, 

we would provide such a list of States 

in the Plants for Planting Manual. This 

would allow us to quickly update the 

list if changes are necessary, providing 

up-to-date information to stakeholders. 

The list of States with a postentry 

quarantine agreement (all U.S. States 

and Territories, except the District of 

Columbia, Guam, Hawaii, Kansas, and 

the Northern Mariana Islands) would 

not change; it would simply be moved 

to the manual. 

Proposed paragraph (c) of § 319.37–23 

would contain requirements for 

importer postentry quarantine growing 

agreements. Such requirements are 

currently found in paragraph (d) of 

§ 319.37–7. Similar to the requirements 

for State postentry quarantine 

agreements, we would simplify the 

requirements currently found in 

§ 319.37–7(d) in proposed paragraph (c). 

Proposed paragraph (c) would require 

that any plants for planting required to 

be grown under postentry quarantine 

conditions, as well as any increase 

therefrom, be grown in accordance with 

an importer postentry quarantine 

growing agreement signed by the person 

(the importer) applying for a written 

permit in accordance with § 319.37–5 

for importation of the plants for planting 

and submitted to PPQ. On each importer 

postentry quarantine growing 

agreement, the person would also have 

to obtain the signature of the SPRO for 

the State in which plants for planting 

covered by the agreement will be grown. 

(Currently, APHIS is required to obtain 

the signature of the SPRO; however, in 

practice, we have required the person 

obtaining the permit to obtain the 

SPRO’s signature, and it is appropriate 

to require that the person seeking to 

grow plants in postentry quarantine 

obtain the necessary approvals to do so. 

Therefore, we are proposing to update 

the regulations to match current 

practice.) 

The importer postentry quarantine 

growing agreement would specify the 

kind, number, and origin of plants to be 

imported; the conditions specified in 

the Plants for Planting Manual under 

which the plants for planting will be 

grown, maintained, and labeled; and the 

reporting requirements in the case of 

abnormal or dead plants for planting. 

The agreement would certify to APHIS 

and to the State in which the plants for 

planting are grown that the signer of the 

agreement will comply with the 

conditions of the agreement for the 

postentry quarantine growing period 

prescribed for the type of plants for 

planting in the Plants for Planting 

Manual. (The standard postentry 

quarantine growing period, as described 

in current paragraph (d)(7), is 2 years, 

but some taxa are grown for other 

periods; we would move all these 

requirements to the Plants for Planting 

Manual.) 

All these elements of the postentry 

quarantine growing agreement are 

described in more detail in current 

§ 319.37–7(d); retaining less detailed 

performance standards in proposed 

§ 319.37–23(c) would allow us to tailor 

postentry quarantine growing 

agreements to specific circumstances 

and to simplify the regulations. 

Paragraph (d) of proposed § 319.37–23 

would specify how to apply for permits. 

A completed importer postentry 

quarantine agreement would have to 

accompany the application for a written 

permit for plants for planting required 

to be grown under postentry quarantine 

conditions. Importer postentry 

quarantine agreement forms would be 

available without charge from APHIS, 

PPQ, Permit Unit, 4700 River Road Unit 

136, Riverdale, Maryland 20737–1236 or 

on the Internet at http:// 

www.aphis.usda.gov/permits/ 

ppq_epermits.shtml. We are proposing 

to update the address for importer 

postentry quarantine agreement forms 

and add a Web address for convenience. 

Paragraph (e) of proposed § 319.37–23 

would address inspector-ordered 

disposal, movement, or safeguarding of 

plants for planting, costs and charges, 

and civil and criminal liabilities. It 

would be taken unchanged from current 

paragraph (f) of § 319.37–7. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This proposed rule has been reviewed 

under Executive Order 12866. The 

proposed rule has been determined to 

be not significant for the purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. 

In accordance with 5 U.S.C. 603, we 

have performed an initial regulatory 

flexibility analysis, which is 

summarized below, regarding the 

economic effects of this proposed rule 

on small entities. Copies of the full 

analysis are available by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT or on the 

Regulations.gov Web site (see 

ADDRESSES above for instructions for 

accessing Regulations.gov). 

Based on the information we have, 

there is no reason to conclude that 

adoption of this proposed rule would 

result in any significant economic effect 

on a substantial number of small 

entities. However, we do not currently 

have all of the data necessary for a 

comprehensive analysis of the effects of 

this proposed rule on small entities. 

Therefore, we are inviting comments on 

potential effects. In particular, we are 

interested in determining the number 

and kind of small entities that may 

incur benefits or costs from the 

implementation of this proposed rule. 

While nearly all importers of plants 

for planting that would be directly 

affected by the proposed rule are small, 

APHIS believes it unlikely that any 

economic impacts would be significant, 

including instances in which 

phytosanitary certification would be 

newly required. The proposed changes 

would facilitate access to information 

on import restrictions for specific types 

of plants for planting, and create a more 

efficient process for amending import 

requirements. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. If this proposed rule is 

adopted: (1) All State and local laws and 

regulations that are inconsistent with 

this rule will be preempted; (2) no 

retroactive effect will be given to this 

rule; and (3) administrative proceedings 

will not be required before parties may 

file suit in court challenging this rule. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24653 

Paperwork Reduction Act 

This proposed rule contains no new 

information collection or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects 

7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

7 CFR Part 340 

Administrative practice and 

procedure, Biotechnology, Genetic 

engineering, Imports, Packaging and 

containers, Plant diseases and pests, 

Transportation. 

Accordingly, we propose to amend 7 

CFR parts 319 and 340 as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 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. 

■ 2. Section 319.8 is amended as 

follows: 

■ a. By redesignating paragraph (b) as 

paragraph (c). 

■ b. By adding a new paragraph (b) to 

read as set forth below. 

§ 319.8 Notice of quarantine. 

* * * * * 

(b) The importation of cotton plants 

(including any plant parts) that are for 

planting or capable of being planted is 

restricted in ‘‘Subpart—Plants for 

Planting’’ of this part. 

* * * * * 

§ 319.8–1 [Amended] 

■ 3. In § 319.8–1, the definition of 

cottonseed is amended by adding the 

words ‘‘and that is intended for 

processing or consumption’’ before the 

period. 

■ 4. Section 319.15 is amended as 

follows: 

■ a. By redesignating paragraph (b) as 

paragraph (c). 

■ b. By adding a new paragraph (b) to 

read as set forth below. 

§ 319.15 Notice of quarantine. 

* * * * * 

(b) The importation of sugarcane 

plants (including any plant parts) that 

are for planting or capable of being 

planted is restricted in ‘‘Subpart—Plants 

for Planting’’ of this part. 

* * * * * 

Subpart—Citrus Canker and Other 

Citrus Diseases [Removed] 

■ 5. Subpart—Citrus Canker and Other 

Citrus Diseases, consisting of § 319.19, 

is removed. 

■ 6. Section 319.24 is amended as 

follows: 

■ a. By redesignating paragraphs (b) 

through (d) as paragraphs (c) through 

(e), respectively. 

■ b. By adding a new paragraph (b) to 

read as set forth below. 

§ 319.24 Notice of quarantine. 

* * * * * 

(b) The importation of corn plants 

(including any plant parts) that are for 

planting or capable of being planted is 

restricted in ‘‘Subpart—Plants for 

Planting’’ of this part. 

* * * * * 

■ 7. Subpart—Plants for Planting, 

§§ 319.37 through 319.37–14, is revised 

to read as follows: 

Subpart—Plants for Planting 

Sec. 

319.37–1 Notice of quarantine. 

319.37–2 Definitions. 

319.37–3 General restrictions on the 

importation of plants for planting. 

319.37–4 Taxa of plants for planting whose 

importation is not authorized pending 

pest risk analysis. 

319.37–5 Permits. 

319.37–6 Phytosanitary certificates. 

319.37–7 Marking and identity. 

319.37–8 Ports of entry: Approved ports, 

notification of arrival, inspection, and 

refusal of entry. 

319.37–9 Treatment of plants for planting; 

costs and charges for inspection and 

treatment; treatments applied outside the 

United States. 

319.37–10 Growing media. 

319.37–11 Packing and approved packing 

material. 

319–37–12 through 319.37–19 [Reserved] 

319.37–20 Restrictions on the importation 

of specific types of plants for planting. 

319.37–21 Integrated pest risk management 

measures. 

319.37–22 Trust fund agreements. 

319.37–23 Postentry quarantine. 

Subpart—Plants for Planting 

§ 319.37–1 Notice of quarantine. 

(a) Under section 412(a) of the Plant 

Protection Act, the Secretary of 

Agriculture may prohibit or restrict the 

importation and entry of any plant or 

plant product if the Secretary 

determines that the prohibition or 

restriction is necessary to prevent the 

introduction into the United States or 

the dissemination within the United 

States of a plant pest or noxious weed. 

(b) The Secretary has determined that 

it is necessary to designate the 

importation of certain taxa of plants for 

planting as not authorized pending pest 

risk analysis, as provided in § 319.37–4. 

The Secretary has determined that it is 

necessary to restrict the importation into 

the United States of all other plants for 

planting and to impose additional 

restrictions on the importation of 

specific types of plants for planting, in 

accordance with this subpart and as 

described in the Plants for Planting 

Manual. 

(c) The importation of plants that are 

imported for processing, as determined 

by an inspector based on documentation 

accompanying the articles, is not subject 

to this subpart. 

(d) The importation of taxa of plants 

for planting that are listed in parts 360 

and 361 of this chapter is subject to the 

restrictions in those parts. 

(e) The Plant Protection and 

Quarantine Programs also enforces 

regulations promulgated under the 

Endangered Species Act of 1973 (16 

U.S.C. 1531–1544) which contain 

additional prohibitions and restrictions 

on importation into the United States of 

plants for planting subject to this 

subpart (see 50 CFR parts 17 and 23). 

(f) One or more common names of 

plants for planting are given in 

parentheses after most scientific names 

(when common names are known) for 

the purpose of helping to identify the 

plants for planting represented by such 

scientific names; however, unless 

otherwise specified, a reference to a 

scientific name includes all plants for 

planting within the taxon represented 

by the scientific name regardless of 

whether the common name or names are 

as comprehensive in scope as the 

scientific name. When restrictions apply 

to the importation of a taxon of plants 

for planting for which there are 

taxonomic synonyms, those restrictions 

apply to the importation of all the 

synonyms of that taxon as well. 

§ 319.37–2 Definitions. 

The following definitions apply to 

this subpart: 

Administrator. The Administrator of 

the Animal and Plant Health Inspection 

Service, United States Department of 

Agriculture, or any other employee of 

the United States Department of 

Agriculture authorized to act in his or 

her stead. 

Bulb. The portion of a plant 

commonly known as a bulb, bulbil, 

bulblet, corm, cormel, rhizome, tuber, or 

pip, and including fleshy roots or other 

underground fleshy growths, a unit of 

which produces an individual plant. 

Consignment. A quantity of plants for 

planting being moved from one country 

to another and covered, when required, 

by a single phytosanitary certificate (a 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24654 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

consignment may be composed of one 

or more lots or taxa). 

Earth. The softer matter composing 

part of the surface of the globe, in 

distinction from the firm rock, and 

including the soil and subsoil, as well 

as finely divided rock and other soil 

formation materials down to the rock 

layer. 

From. Plants for planting are 

considered to be ‘‘from’’ any country or 

locality in which it was grown. 

Provided, That plants for planting 

imported into Canada from another 

country or locality shall be considered 

as being solely from Canada if they meet 

the following conditions: 

(1) They are imported into the United 

States directly from Canada after having 

been grown for at least 1 year in Canada, 

(2) They have never been grown in a 

country from which their importation 

would not be authorized pending pest 

risk analysis under § 319.37–4, 

(3) They have never been grown in a 

country other than Canada from which 

it would be subject to certain 

restrictions on the importation of 

specific types of plants for planting 

under § 319.37–20, which are listed in 

the Plants for Planting Manual; 

Provided, that plants for planting that 

would be subject to postentry 

quarantine if imported into the United 

States may be imported from Canada 

after growth in another country if they 

were grown in Canada in postentry 

quarantine under conditions equivalent 

to those specified in the Plants for 

Planting Manual, and 

(4) They were not imported into 

Canada in growing media. 

Inspector. Any individual authorized 

by the Administrator or the 

Commissioner of Customs and Border 

Protection, Department of Homeland 

Security, to enforce the regulations in 

this part. 

Lot. A number of units of a single 

commodity, identifiable by its 

homogeneity of composition and origin, 

forming all or part of a consignment. 

Mother stock. A group of plants from 

which plant parts are taken to produce 

new plants. 

National plant protection 

organization (NPPO). The official 

service established by a government to 

discharge the functions specified by the 

International Plant Protection 

Convention. 

Noxious weed. Any plant or plant 

product that can directly or indirectly 

injure or cause damage to crops 

(including plants for planting or plant 

products), livestock, poultry, or other 

interests of agriculture, irrigation, 

navigation, the natural resources of the 

United States, the public health, or the 

environment. 

Official control. The active 

enforcement of mandatory 

phytosanitary regulations and the 

application of mandatory phytosanitary 

procedures with the objective of 

eradication or containment of 

quarantine pests. 

Person. Any individual, partnership, 

corporation, association, joint venture, 

or other legal entity. 

Phytosanitary certificate. A document 

relating to a consignment of plants for 

planting, which is issued by an official 

of the NPPO of the country in which the 

plants for planting were grown, which 

is issued not more than 15 days prior to 

shipment of the plants for planting from 

the country in which grown, which is 

addressed to the NPPO of the United 

States (Plant Protection and Quarantine 

Programs), which contains a description 

of the plants for planting intended to be 

imported into the United States, which 

certifies that the plant has been 

thoroughly inspected, is believed to be 

free from quarantine pests, and is 

otherwise believed to be eligible for 

importation pursuant to the current 

phytosanitary laws and regulations of 

the United States, and which contains 

any specific additional declarations 

required in accordance with § 319.37–20 

and specified in the Plants for Planting 

Manual. 

Place of production. Any premises or 

collection of fields operated as a single 

production or farming unit. This may 

include a production site that is 

separately managed for phytosanitary 

purposes. 

Plant. Any plant (including any plant 

part) for or capable of propagation, 

including a tree, a tissue culture, a 

plantlet culture, pollen, a shrub, a vine, 

a cutting, a graft, a scion, a bud, a bulb, 

a root, and a seed. 

Plant pest. Any living stage of any of 

the following that can directly or 

indirectly injure, cause damage to, or 

cause disease in any plant or plant 

product: A protozoan, a nonhuman 

animal, a parasitic plant, a bacterium, a 

fungus, a virus or viroid, an infectious 

agent or other pathogen, or any article 

similar to or allied with any of these 

articles. 

Plant Protection and Quarantine 

Programs. The organizational unit with 

the Animal and Plant Health Inspection 

Service, U.S. Department of Agriculture, 

delegated responsibility for enforcing 

provisions of the Plant Protection Act (7 

U.S.C. 7701 et seq.) and related 

legislation, quarantines, and regulations. 

Plants for planting. Regulated plants 

(including any plant parts) that are for 

planting or capable of being planted. 

Plants for Planting Manual. The 

document that contains restrictions on 

the importation of specific types of 

plants for planting, as provided in 

§ 319.37–20, and other information 

about the importation of plants for 

planting as provided in this subpart. 

The Plants for Planting Manual is 

available on the Internet at http://www.

aphis.usda.gov/import_export/plants/

manuals/ports/downloads/plants_for_

planting.pdf or by contacting the 

Animal and Plant Health Inspection 

Service, Plant Protection and 

Quarantine, 4700 River Road Unit 133, 

Riverdale, MD 20737–1236. 

Planting. Any operation for the 

placing of plants in a growing medium, 

or by grafting or similar operations, to 

ensure their subsequent growth, 

reproduction, or propagation. 

Port of first arrival. The land area 

(such as a seaport, airport, or land 

border station) where a person, or a 

land, water, or air vehicle, first arrives 

after entering the territory of the United 

States, and where inspection of plants 

for planting is carried out by inspectors. 

Preclearance. Phytosanitary 

inspection and/or clearance in the 

country in which the plants for planting 

were grown, performed by or under the 

regular supervision of APHIS. 

Production site. A defined portion of 

a place of production utilized for the 

production of a commodity that is 

managed separately for phytosanitary 

purposes. This may include the entire 

place of production or portions of it. 

Examples of portions of places of 

production are a defined orchard, grove, 

field, greenhouse, screenhouse, or 

premises. 

Quarantine pest. A plant pest or 

noxious weed that is of potential 

economic importance to the United 

States and not yet present in the United 

States, or present but not widely 

distributed and being officially 

controlled. 

Regulated plant. A vascular or 

nonvascular plant. Vascular plants 

include gymnosperms, angiosperms, 

ferns, and fern allies. Gymnosperms 

include cycads, conifers, and gingko. 

Angiosperms include any flowering 

plant. Fern allies include club mosses, 

horsetails, whisk ferns, spike mosses, 

and quillworts. Nonvascular plants 

include mosses, liverworts, hornworts, 

and green algae. 

Secretary. The Secretary of 

Agriculture, or any other officer or 

employee of the Department of 

Agriculture to whom authority to act in 

his/her stead has been or may hereafter 

be delegated. 

Soil. The loose surface material of the 

earth in which plants, trees, and shrubs 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24655 

grow, in most cases consisting of 

disintegrated rock with an admixture of 

organic material and soluble salts. 

Species (spp.). All species, clones, 

cultivars, strains, varieties, and hybrids 

of a genus. 

State. Any of the several States of the 

United States, the Commonwealth of the 

Northern Mariana Islands, the 

Commonwealth of Puerto Rico, the 

District of Columbia, Guam, the Virgin 

Islands of the United States, or any 

other territory or possession of the 

United States. 

State Plant Regulatory Official. The 

official authorized by the State to sign 

agreements with Federal agencies 

involving operations of the State plant 

protection agency. 

Taxon (taxa). Any grouping within 

botanical nomenclature, such as family, 

genus, species, or cultivar. 

Type of plants for planting. A 

grouping of plants for planting based on 

shared characteristics such as biological 

traits, morphology, botanical 

nomenclature, or risk factors. 

United States. All of the States. 

§ 319.37–3 General restrictions on the 

importation of plants for planting. 

(a) The importation of certain taxa of 

plants for planting is not authorized 

pending pest risk analysis in accordance 

with § 319.37–4. 

(b) General restrictions that apply to 

the importation of all plants for planting 

other than those whose importation is 

not authorized pending pest risk 

analysis are found in §§ 319.37–5 

through 319.37–11. 

(c) In accordance with § 319.37–20, 

the Administrator may impose 

restrictions on the importation of 

specific types of plants for planting. 

These restrictions are listed in the 

Plants for Planting Manual. Additional 

information on certain restrictions on 

the importation of specific types of 

plants for planting can be found in 

§§ 319.37–21 through 319.37–23. 

§ 319.37–4 Taxa of plants for planting 

whose importation is not authorized 

pending pest risk analysis. 

(a) Determination by the 

Administrator. The importation of 

certain taxa of plants for planting poses 

a risk of introducing quarantine pests 

into the United States. Therefore, the 

importation of these taxa is not 

authorized pending the completion of a 

pest risk analysis, except as provided in 

paragraph (f) of this section. These taxa 

are listed in the Plants for Planting 

Manual. There are two lists of taxa 

whose importation is not authorized 

pending pest risk analysis: A list of taxa 

of plants for planting that are quarantine 

pests, and a list of taxa of plants for 

planting that are hosts of quarantine 

pests. For taxa of plants for planting that 

have been determined to be quarantine 

pests, the list includes the names of the 

taxa. For taxa of plants for planting that 

are hosts of quarantine pests, the list 

includes the names of the taxa, the 

foreign places from which the taxa’s 

importation is not authorized, and the 

quarantine pests of concern. 

(b) Addition of taxa. A taxon of plants 

for planting may be added to one of the 

lists of taxa not authorized for 

importation pending pest risk analysis 

under this section as follows: 

(1) Data sheet. APHIS will publish in 

the Federal Register a notice that 

announces our determination that a 

taxon of plants for planting is either a 

quarantine pest or a host of a quarantine 

pest. This notice will make available a 

data sheet that details the scientific 

evidence APHIS evaluated in making 

the determination that the taxon is a 

quarantine pest or a host of a quarantine 

pest. The data sheet will include 

references to the scientific evidence that 

APHIS used in making the 

determination. In our notice, we will 

provide for a public comment period of 

a minimum of 60 days on our addition 

to the list. 

(2) Response to comments. (i) APHIS 

will issue a notice after the close of the 

public comment period indicating that 

the taxon will be added to the list of 

taxa not authorized for importation 

pending pest risk analysis if: 

(A) No comments were received on 

the data sheet; 

(B) The comments on the data sheet 

revealed that no changes to the data 

sheet were necessary; or 

(C) Changes to the data sheet were 

made in response to public comments, 

but the changes did not affect APHIS’ 

determination that the taxon poses a 

risk of introducing a quarantine pest 

into the United States. 

(ii) If comments present information 

that leads us to determine that the 

importation of the taxon does not pose 

a risk of introducing a quarantine pest 

into the United States, APHIS will not 

add the taxon to the list of plants for 

planting whose importation is not 

authorized pending pest risk analysis. 

APHIS will issue a notice giving public 

notice of this determination after the 

close of the comment period. 

(c) Criterion for listing a taxon of 

plants for planting as a quarantine pest. 

A taxon will be added to the list of taxa 

whose importation is not authorized 

pending pest risk analysis if scientific 

evidence causes APHIS to determine 

that the taxon is a quarantine pest. 

(d) Criteria for listing a taxon of 

plants for planting as a host of a 

quarantine pest. A taxon will be added 

to the list of taxa whose importation is 

not authorized pending pest risk 

analysis if scientific evidence causes 

APHIS to determine that the taxon is a 

host of a quarantine pest. The following 

criteria must be fulfilled in order to 

make this determination: 

(1) The plant pest in question must be 

determined to be a quarantine pest; and 

(2) The taxon of plants for planting 

must be determined to be a host of that 

quarantine pest. 

(e) Removing a taxon from the list of 

taxa not authorized pending pest risk 

analysis. (1) Requests to remove a taxon 

from the list of taxa whose importation 

is not authorized pending pest risk 

analysis must be made in accordance 

with § 319.5 of this part. APHIS will 

conduct a pest risk analysis in response 

to such a request. The pest risk analysis 

will examine the risk associated with 

the importation of that taxon as well as 

measures available to mitigate that risk. 

The pest risk analysis may analyze 

importation of the taxon from a specific 

area, country, or countries, or from all 

areas of the world. The conclusions of 

the pest risk analysis will apply 

accordingly. 

(2) If the pest risk analysis indicates 

that the taxon is a quarantine pest or a 

host of a quarantine pest and the 

Administrator determines that there are 

no measures available that adequately 

mitigate the risk of introducing a 

quarantine pest into the United States 

through the taxon’s importation, we will 

continue to list the taxon as not 

authorized for importation pending pest 

risk analysis. We will publish a notice 

making the pest risk analysis available 

for comment. If comments cause us to 

change our determination, we will 

publish another notice in accordance 

with either paragraph (e)(3) or 

paragraph (e)(4) of this section, as 

appropriate. If comments do not cause 

us to change our determination, we will 

publish a second notice responding to 

the comments and affirming our 

determination that the taxon should 

continue to be listed as NAPPRA. 

(3) If the pest risk analysis supports a 

determination that importation of the 

taxon be allowed subject to taxonspecific restrictions, APHIS will publish 

a notice making the pest risk analysis 

available to the public for comment in 

accordance with the process in 

§ 319.37–20(c). 

(4) If the pest risk analysis supports a 

determination that importation of the 

taxon be allowed subject to the general 

restrictions of this subpart, APHIS will 

publish a notice announcing our intent 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24656 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

1An inspector may hold, seize, quarantine, treat, 

apply other remedial measures to, destroy, or 

otherwise dispose of plants, plant pests, or other 

articles in accordance with sections 414, 421, and 

434 of the Plant Protection Act (7 U.S.C. 7714, 7731, 

and 7754). 

to remove the taxon from the list of taxa 

whose importation is not authorized 

pending pest risk analysis and making 

the pest risk analysis supporting the 

taxon’s removal available for public 

comment. 

(i) APHIS will issue a notice after the 

close of the public comment period 

indicating that the importation of the 

taxon will be subject only to the general 

restrictions of this subpart if: 

(A) No comments were received on 

the pest risk analysis; 

(B) The comments on the pest risk 

analysis revealed that no changes to the 

pest risk analysis were necessary; or 

(C) Changes to the pest risk analysis 

were made in response to public 

comments, but the changes did not 

affect the overall conclusions of the 

analysis and the Administrator’s 

determination that the importation of 

the taxon does not pose a risk of 

introducing a quarantine pest into the 

United States. 

(ii) If information presented by 

commenters indicates that the pest risk 

analysis needs to be revised, APHIS will 

issue a notice after the close of the 

public comment period indicating that 

the importation of the taxon will 

continue to be listed as not authorized 

pending pest risk analysis while the 

information presented by commenters is 

analyzed and incorporated into the pest 

risk analysis. APHIS will subsequently 

publish a new notice announcing the 

availability of the revised pest risk 

analysis. 

(5) APHIS may also remove a taxon 

from the list of taxa whose importation 

is not authorized pending pest risk 

analysis when APHIS determines that 

the evidence used to add the taxon to 

the list was erroneous (for example, 

involving a taxonomic 

misidentification). 

(f) Departmental permits. Any plants 

for planting whose importation is not 

authorized pending pest risk analysis in 

accordance with this section may be 

imported or offered for entry into the 

United States if: 

(1) Imported by the United States 

Department of Agriculture for 

experimental or scientific purposes; 

(2) Imported at the National Plant 

Germplasm Inspection Station, Building 

580, Beltsville Agricultural Research 

Center East, Beltsville, MD 20705 or 

through any Federal plant inspection 

station listed in the Plants for Planting 

Manual; 

(3) Imported pursuant to a 

Departmental permit issued for such 

plants for planting and kept on file at 

the port of entry; 

(4) Imported under conditions 

specified on the Departmental permit 

and found by the Administrator to be 

adequate to prevent the introduction 

into the United States of quarantine 

pests, i.e., conditions of treatment, 

processing, growing, shipment, 

disposal; and 

(5) Imported with a Departmental tag 

or label securely attached to the outside 

of the container containing the plants 

for planting or securely attached to the 

plant itself if not in a container, and 

with such tag or label bearing a 

Departmental permit number 

corresponding to the number of the 

Departmental permit issued for such 

plants for planting. 

§ 319.37–5 Permits. 

(a)(1) Plants for planting may be 

imported or offered for importation into 

the United States only after issuance of 

a written permit by the Plant Protection 

and Quarantine Programs, except as 

provided in the Plants for Planting 

Manual. Exceptions from the 

requirement for a written permit will be 

added, changed, or removed in 

accordance with § 319.37–20. 

(2) Plants for planting whose 

importation is subject to postentry 

quarantine, as listed in the Plants for 

Planting Manual must also be imported 

under an importer postentry quarantine 

growing agreement in accordance with 

§ 319.37–23(c). 

(b) An application for a written permit 

should be submitted to the Plant 

Protection and Quarantine Programs 

(Animal and Plant Health Inspection 

Service, Plant Protection and 

Quarantine, Permits, Permit Unit, 4700 

River Road Unit 133, Riverdale, MD 

20737–1236) at least 30 days prior to 

arrival of the plants for planting at the 

port of entry. Application forms are 

available without charge from that 

address or on the Internet at http:// 

www.aphis.usda.gov/permits/ 

ppq_epermits.shtml. The completed 

application shall include the following 

information: 

(1) Name, address, and telephone 

number of the importer; 

(2) The taxon or taxa and the 

approximate quantity of plants for 

planting intended to be imported; 

(3) Country(ies) or locality(ies) where 

grown; 

(4) Intended United States port of 

entry; 

(5) Means of transportation, e.g., mail, 

airmail, express, air express, freight, 

airfreight, or baggage; and 

(6) Expected date of arrival. 

(c) A permit indicating the applicable 

conditions for importation under this 

subpart will be issued by Plant 

Protection and Quarantine Programs if, 

after review of the application, the 

plants for planting are deemed eligible 

to be imported into the United States 

under the conditions specified in the 

permit. However, even if such a permit 

is issued, the plants for planting may be 

imported only if all applicable 

requirements of this subpart are met and 

only if an inspector at the port of entry 

determines that no remedial measures 

pursuant to the Plant Protection Act are 

necessary with respect to the plants for 

planting.1

(d) Any permit which has been issued 

may be withdrawn by an inspector or 

the Administrator if he or she 

determines that the holder thereof has 

not complied with any condition for the 

use of the document. The reasons for the 

withdrawal shall be confirmed in 

writing as promptly as circumstances 

permit. Any person whose permit has 

been withdrawn may appeal the 

decision in writing to the Administrator 

within 10 days after receiving the 

written notification of the withdrawal. 

The appeal shall state all of the facts 

and reasons upon which the person 

relies to show that the permit was 

wrongfully withdrawn. The 

Administrator shall grant or deny the 

appeal, in writing, stating the reasons 

for the decision as promptly as 

circumstances permit. If there is a 

conflict as to any material fact, a hearing 

shall be held to resolve such conflict. 

(e) Any plants for planting not 

required to be imported with a permit 

in accordance with paragraph (a) of this 

section may be imported or offered for 

importation into the United States only 

after issuance of an oral permit for 

importation issued by an inspector at 

the port of entry. 

(f) An oral permit for importation of 

plants for planting shall be issued at a 

port of entry by an inspector only if all 

applicable requirements of this subpart 

are met, such plants for planting are 

eligible to be imported under an oral 

permit, and an inspector at the port of 

entry determines that no measures 

pursuant to section 414 of the Plant 

Protection Act (7 U.S.C. 7714) are 

necessary with respect to such plants for 

planting.1

§ 319.37–6 Phytosanitary certificates. 

(a) Phytosanitary certificates. Any 

plants for planting offered for 

importation into the United States must 

be accompanied by a phytosanitary 

certificate, except as described in 

paragraphs (b) and (c) of this section. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24657 

The phytosanitary certificate must 

identify the genus of the plants for 

planting it accompanies. When the 

importation of individual species or 

cultivars within a genus is restricted in 

accordance with § 319.37–20, the 

phytosanitary certificate must also 

identify the species or cultivar of the 

plants for planting it accompanies. 

Otherwise, identification of the species 

is strongly preferred, but not required. 

Intergeneric and interspecific hybrids 

must be designated by placing the 

multiplication sign ‘‘×’’ between the 

names of the parent taxa. If the hybrid 

is named, the multiplication sign may 

instead be placed before the name of an 

intergeneric hybrid or before the epithet 

in the name of an interspecific hybrid. 

(b) Small lots of seed. Lots of seed 

may be imported without a 

phytosanitary certificate required by 

paragraph (a) of this section under the 

following conditions: 

(1) The importation of the seed is 

authorized by a written permit issued in 

accordance with § 319.37–5. 

(2) The seed is not listed as not 

authorized pending pest risk analysis, as 

provided in § 319.37–4; is not of any 

noxious weed species listed in part 360 

of this chapter; is not subject to 

restrictions on specific types of plants 

for planting as provided in § 319.37–20; 

is not restricted under the regulations in 

parts 330 and 340 of this chapter; and 

meets the requirements of part 361 of 

this chapter. 

(3) The seed meets the following 

packaging and shipping requirements: 

(i) Each seed packet is clearly labeled 

with the name of the collector/shipper, 

the country of origin, and the scientific 

name at least to the genus, and 

preferably to the species, level; 

(ii) There are a maximum of 50 seeds 

of 1 taxon (taxonomic category such as 

genus, species, cultivar, etc.) per packet; 

or a maximum weight not to exceed 10 

grams of seed of 1 taxon per packet; 

(iii) There are a maximum of 50 seed 

packets per shipment; 

(iv) The seeds are free from pesticides; 

(v) The seeds are securely packaged in 

packets or envelopes and sealed to 

prevent spillage; 

(vi) The shipment is free from soil, 

plant material other than seed, other 

foreign matter or debris, seeds in the 

fruit or seed pod, and living organisms 

such as parasitic plants, pathogens, 

insects, snails, mites; and 

(vii) At the time of importation, the 

shipment is sent to either the Plant 

Germplasm Quarantine Center in 

Beltsville, MD, or a USDA plant 

inspection station. 

(c) Importation of other plants for 

planting without phytosanitary 

certificates. (1) The Administrator may 

authorize the importation of types of 

plants for planting without a 

phytosanitary certificate if the plants for 

planting are accompanied by equivalent 

documentation agreed upon by the 

Administrator and the NPPO of the 

exporting country as sufficient to 

establish the origin, identity, and 

quarantine pest status of the plants. The 

documentation must be provided by the 

NPPO or refer to documentation of the 

origin, identity, and quarantine pest 

status of the plants for planting 

provided by the NPPO. The 

documentation must be agreed upon 

before the plants for planting are 

exported from the exporting country to 

the United States. 

(2) The Administrator may impose 

additional restrictions on the 

importation of plants for planting that 

are not accompanied by a phytosanitary 

certificate to ensure that the plants are 

appropriately identified and free of 

quarantine pests. 

(3) The Plants for Planting Manual 

lists types of plants for planting that are 

not required to be accompanied by a 

phytosanitary certificate; the countries 

from which their importation without a 

phytosanitary certificate is authorized; 

the approved documentation of their 

origin, identity, and quarantine pest 

status; and any additional conditions on 

their importation. 

(4) Types of plants for planting may 

be added to or removed from the list of 

plants for planting that are not required 

to be accompanied by a phytosanitary 

certificate in accordance with § 319.37– 

20. The requirements for importing 

types of plants for planting without a 

phytosanitary certificate may also be 

changed in accordance with § 319.37– 

20. The notice published for comment 

will describe the documentation agreed 

upon by the Administrator and the 

NPPO of the exporting country and any 

additional restrictions to be imposed on 

the importation of the type of plants for 

planting. 

§ 319.37–7 Marking and identity. 

(a) Any plants for planting for 

importation other than by mail at the 

time of importation or offer for 

importation into the United States shall 

plainly and correctly bear on the outer 

container (if in a container) or the plants 

for planting (if not in a container) the 

following information: 

(1) General nature and quantity of the 

contents, 

(2) Country and locality where grown, 

(3) Name and address of shipper, 

owner, or person shipping or forwarding 

the plants for planting, 

(4) Name and address of consignee, 

(5) Identifying shipper’s mark and 

number, and 

(6) Number of written permit 

authorizing the importation, if one was 

required under § 319.37–5. 

(b) Any plants for planting for 

importation by mail shall be plainly and 

correctly addressed and mailed to the 

Plant Protection and Quarantine 

Programs at a port of entry listed in the 

Plants for Planting Manual as approved 

to receive imported plants for planting, 

shall be accompanied by a separate 

sheet of paper within the package 

plainly and correctly bearing the name, 

address, and telephone number of the 

intended recipient, and shall plainly 

and correctly bear on the outer 

container the following information: 

(1) General nature and quantity of the 

contents, 

(2) Country and locality where grown, 

(3) Name and address of shipper, 

owner, or person shipping or forwarding 

the plants for planting, and 

(4) Number of written permit 

authorizing the importation, if one was 

required under § 319.37–5. 

(c) Any plants for planting for 

importation (by mail or otherwise), at 

the time of importation or offer for 

importation into the United States shall 

be accompanied by an invoice or 

packing list indicating the contents of 

the consignment. 

§ 319.37–8 Ports of entry: Approved ports, 

notification of arrival, inspection, and 

refusal of entry. 

(a) Approved ports of entry. Any 

plants for planting required to be 

imported under a written permit 

pursuant to § 319.37–5(a), if not 

precleared, may be imported or offered 

for importation only at a USDA plant 

inspection station listed in the Plants for 

Planting Manual. Ports of entry through 

which plants for planting must pass 

before arriving at these USDA plant 

inspection stations are listed in the 

Plants for Planting Manual. Any other 

plants for planting that are not required 

to be imported under a written permit 

pursuant to § 319.37–5(a) may be 

imported or offered for importation at 

any Customs designated port of entry 

indicated in 19 CFR 101.3(b)(1). 

Exceptions may be listed in § 330.104 of 

this chapter. Plants for planting that are 

required to be imported under a written 

permit that are also precleared in the 

country of export are not required to 

enter at an inspection station and may 

enter through any Customs port of entry. 

Exceptions may be listed in § 330.104 of 

this chapter. 

(b) Notification upon arrival at the 

port of entry. Promptly upon arrival of 

any plants for planting at a port of entry, 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24658 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

2Provisions relating to costs for other services of 

an inspector are contained in part 354. 

the importer shall notify the Plant 

Protection and Quarantine Programs of 

the arrival by such means as a manifest, 

Customs entry document, commercial 

invoice, waybill, a broker’s document, 

or a notice form provided for that 

purpose. 

(c) Inspection and treatment. Any 

plants for planting may be sampled and 

inspected by an inspector at the port of 

first arrival and/or under preclearance 

inspection arrangements in the country 

in which the plants for planting were 

grown, and must undergo treatment in 

accordance with part 305 of this chapter 

if treatment is ordered by the inspector. 

Any plants for planting found upon 

inspection to contain or be 

contaminated with quarantine pests that 

cannot be eliminated by treatment will 

be denied entry at the first United States 

port of arrival and must be destroyed or 

shipped to a point outside the United 

States. 

(d) Disposition of plants for planting 

not in compliance with this subpart. 

The importer of any plants for planting 

denied entry for noncompliance with 

this subpart must, at the importer’s 

expense and within the time specified 

in an emergency action notification 

(PPQ Form 523), destroy, ship to a point 

outside the United States, treat in 

accordance with part 305 of this 

chapter, or apply other safeguards to the 

plants for planting, as prescribed by an 

inspector, to prevent the introduction 

into the United States of quarantine 

pests. In choosing which action to order 

and in setting the time limit for the 

action, the inspector shall consider the 

degree of pest risk presented by the 

plant pest associated with the plants for 

planting, whether the plants for planting 

are a host of the pest, the types of other 

host materials for the pest in or near the 

port, the climate and season at the port 

in relation to the pest’s survival range, 

and the availability of treatment 

facilities for the plants for planting. 

(e) Removal of plants for planting 

from port of first arrival. No person shall 

remove any plants for planting from the 

port of first arrival unless and until 

notice is given to the collector of 

customs by the inspector that the plants 

for planting has satisfied all 

requirements under this subpart. 

§ 319.37–9 Treatment of plants for 

planting; costs and charges for inspection 

and treatment; treatments applied outside 

the United States. 

(a) The services of a Plant Protection 

and Quarantine inspector during 

regularly assigned hours of duty and at 

the usual places of duty shall be 

furnished without cost to the importer.2

No charge will be made to the importer 

for Government-owned or -controlled 

special inspection facilities and 

equipment used in treatment, but the 

inspector may require the importer to 

furnish any special labor, chemicals, 

packing materials, or other supplies 

required in handling an importation 

under the regulations in this subpart. 

The Plant Protection and Quarantine 

Programs will not be responsible for any 

costs or charges, other than those 

indicated in this section. 

(b) Any treatment performed in the 

United States on plants for planting 

must be performed at the time of 

importation into the United States. 

Treatment shall be performed by an 

inspector or under an inspector’s 

supervision at a Government-operated 

special inspection facility, except that 

an importer may have such treatment 

performed at a nongovernmental facility 

if the treatment is performed at 

nongovernment expense under the 

supervision of an inspector and in 

accordance with part 305 of this chapter 

and in accordance with any treatment 

required by an inspector as an 

emergency measure in order to prevent 

the dissemination of any quarantine 

pests. However, treatment may be 

performed at a nongovernmental facility 

only in cases of unavailability of 

government facilities and only if, in the 

judgment of an inspector, the plants for 

planting can be transported to such 

nongovernmental facility without the 

risk of introduction into the United 

States of quarantine pests. 

(c) Any treatment performed outside 

the United States must be monitored 

and certified by an APHIS inspector or 

an official from the NPPO of the 

exporting country. If monitored and 

certified by an official of the NPPO of 

the exporting country, then a 

phytosanitary certificate must be issued 

with the following declaration: ‘‘The 

consignment of (fill in taxon) has been 

treated in accordance with 7 CFR part 

305.’’ During the entire interval between 

treatment and export, the consignment 

must be stored and handled in a manner 

that prevents any infestation by 

quarantine pests. 

§ 319.37–10 Growing media. 

(a) Any plants for planting at the time 

of importation or offer for importation 

into the United States shall be free of 

sand, soil, earth, and other growing 

media, except as provided in paragraph 

(b), (c), or (d) of this section. 

(b) Plants for planting from Canada 

may be imported in any growing 

medium, except as restricted in the 

Plants for Planting Manual. Restrictions 

on growing media for specific types of 

plants for planting imported from 

Canada will be added, changed, or 

removed in accordance with § 319.37– 

20. 

(c) Certain types of plants for planting 

growing solely in certain growing media 

listed in the Plants for Planting Manual 

may be imported established in such 

growing media. The Administrator has 

determined that the importation of the 

specified types of plants for planting in 

these growing media does not pose a 

risk of introducing quarantine pests into 

the United States. If the Administrator 

determines that a new growing medium 

may be added to the list of growing 

media in which imported plants for 

planting may be established, or that a 

growing medium currently listed for 

such purposes is no longer suitable for 

establishment of imported plants for 

planting, APHIS will publish in the 

Federal Register a notice that 

announces our determination and 

requests comment on the change. After 

the close of the comment period, APHIS 

will publish another notice informing 

the public regarding the Administrator’s 

decision on the change to the list of 

growing media in which imported types 

of plants for planting may be 

established. 

(d) Certain types of plants for 

planting, as listed in the Plants for 

Planting Manual, may be imported 

when they are established in a growing 

medium approved by the Administrator 

and they are produced in accordance 

with additional requirements specified 

in the Plants for Planting Manual. 

Changes to the list of plants for planting 

that may be imported in growing media, 

and to the requirements for the 

importation of those types of plants for 

planting, will be made in accordance 

with § 319.37–20. 

§ 319.37–11 Packing and approved 

packing material. 

(a) Plants for planting for importation 

into the United States must not be 

packed in the same container as plants 

for planting whose importation into the 

United States is not authorized pending 

pest risk analysis in accordance with 

§ 319.37–4. 

(b) Any plants for planting at the time 

of importation or offer for importation 

into the United States shall not be 

packed in a packing material unless the 

plants were packed in the packing 

material immediately prior to shipment; 

such packing material is free from sand, 

soil, or earth (except as designated in 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24659 

the Plants for Planting Manual); has not 

been used previously as packing 

material or otherwise; and is approved 

by the Administrator as not posing a 

risk of introducing quarantine pests. 

Approved packing materials are listed 

in the Plants for Planting Manual. 

(c) If the Administrator determines 

that a new packing material may be 

added to the list of packing materials, or 

that a packing material currently listed 

should no longer be approved, APHIS 

will publish in the Federal Register a 

notice that announces our 

determination and requests comment on 

the change. After the close of the 

comment period, APHIS will publish 

another notice informing the public 

regarding the Administrator’s decision 

on the change to the list of approved 

packing materials. 

§§ 319–37–12 through 319.37–19 

[Reserved] 

§ 319.37–20 Restrictions on the 

importation of specific types of plants for 

planting. 

(a) Plant type-specific restrictions. In 

addition to the general restrictions in 

this subpart, the Administrator may 

impose additional restrictions on the 

importation of specific types of plants 

for planting necessary to effectively 

mitigate the risk of introducing 

quarantine pests into the United States 

through the importation of those plants 

for planting. Additional restrictions may 

be placed on the importation of the 

entire plant or on certain plant parts. A 

list of the types of plants for planting 

whose importation is subject to 

additional restrictions, and the specific 

restrictions that apply to the 

importation of each type of plants for 

planting, may be found in the Plants for 

Planting Manual. 

(b) Basis for changing restrictions. The 

Administrator may determine that it is 

necessary to add, change, or remove 

restrictions on the importation of a 

specific type of plants for planting, 

based on the risk of introducing a 

quarantine pest through the importation 

of that type of plants for planting. The 

Administrator will make this 

determination based on the findings of 

a pest risk analysis or on other scientific 

evidence. 

(c) Process for adding, changing, or 

removing restrictions. Restrictions on 

the importation of a specific type of 

plants for planting beyond the general 

restrictions in §§ 319.37–5 through 

319.37–11 will be changed through the 

following process: 

(1) Document describing restrictions. 

APHIS will publish in the Federal 

Register a notice that announces our 

determination that it is necessary to 

add, change, or remove restrictions on 

the importation of a specific type of 

plants for planting. This notice will 

make available for public comment a 

document describing the restrictions 

that the Administrator has determined 

are necessary and how these restrictions 

will mitigate the risk of introducing 

quarantine pests into the United States. 

(2) Response to comments. APHIS 

will issue a notice after the close of the 

public comment period on the notice 

described in paragraph (c)(1) of this 

section. This notice will inform the 

public of the specific restrictions, if any, 

that the Administrator has determined 

to be necessary in order to mitigate the 

risk of introducing quarantine pests into 

the United States through the 

importation of the type of plants for 

planting. In response to the information 

submitted in public comments, the 

Administrator may implement the 

restrictions described in the document 

made available by the initial notice, 

amend the restrictions in response to 

public comment, or determine that 

changes to the restrictions on the 

importation of the type of plants for 

planting are unnecessary. 

(d) Previously imposed restrictions on 

specific types of plants for planting. 

Types of plants for planting whose 

importation was subject to specific 

restrictions by specific regulation as of 

[insert effective date of final rule] will 

continue to be subject to those 

restrictions, except as changed in 

accordance with the process specified in 

paragraph (c) of this section. The 

restrictions will be found in the Plants 

for Planting Manual. 

§ 319.37–21 Integrated pest risk 

management measures. 

If a type of plants for planting is a 

host of a quarantine pest or pests, 

APHIS may require the type of plants 

for planting to be produced in 

accordance with integrated pest risk 

management measures as a condition of 

importation. This section sets out a 

general framework for integrated pest 

risk management measures. When 

appropriate, APHIS will require a type 

of plants for planting to be imported 

subject to integrated pest risk 

management measures that mitigate the 

quarantine pest risks associated with 

that type of plants for planting through 

the process described in § 319.37–20. 

(a) Responsibilities of the place of 

production. The place of production is 

responsible for identifying, developing, 

and implementing procedures that meet 

the requirements of both the NPPO of 

the exporting country and APHIS. 

Participants in the export program must 

be approved by the NPPO or its 

designee and APHIS. Approval will be 

conferred by the NPPO or its designee 

and APHIS after the participant meets 

the conditions required for integrated 

pest risk management. Approval will be 

withdrawn if the participant fails to 

meet the conditions at any time. All 

documentation required under 

paragraph (a)(5) of this section will be 

maintained by the exporting place of 

production and made available to 

official representatives of the NPPO of 

the exporting country and APHIS upon 

request. The place of production must 

be open to necessary and reasonable 

audit, monitoring, and evaluation of 

compliance by the NPPO of the 

exporting country and APHIS. The 

management of the place of production 

will be responsible for complying with 

the integrated pest risk management 

measures. Management must specify the 

roles and responsibilities of its 

personnel to perform program activities. 

The place of production must notify the 

NPPO of the exporting country of 

deficiencies detected during internal 

audits. The NPPO of the exporting 

country will be responsible for ensuring 

that the place of production is in 

compliance with the integrated pest risk 

management measures. 

(1) Pest management program. The 

place of production must develop and 

implement an approved pest 

management program that contains 

ongoing pest monitoring and procedures 

for the exclusion and control of plant 

pests. The place of production must 

obtain material used to produce plants 

for planting from sources that are free of 

quarantine pests and that are approved 

by the NPPO of the exporting country 

and APHIS. All sources of plants for 

planting and the phytosanitary status of 

those plants must be well-documented 

and the program for producing plants 

for planting carefully monitored. 

(2) Training. A training program 

approved by the NPPO of the exporting 

country and APHIS must be established, 

documented, and regularly conducted at 

the place of production. The training 

program must ensure that all those 

involved in the export program possess 

specific knowledge related to the 

relevant components of the program and 

a general understanding of its 

requirements. 

(3) Internal audits. The place of 

production must perform, or designate 

parties to perform internal audits that 

ensure that a plan approved and 

documented by APHIS and the NPPO of 

the exporting country is being followed 

and is achieving the appropriate level of 

pest management. 

(4) Traceability. The place of 

production must implement a procedure 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24660 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

approved by APHIS and the NPPO of 

the exporting country or its designee 

that documents and identifies plants 

from propagation through harvest and 

sale to ensure that plants can be traced 

forward and back from the place of 

production. The system must at a 

minimum account for: 

(i) The origin and pest status of 

mother stock; 

(ii) The year of propagation and the 

place of production of all plant parts 

that make up the plants for planting 

intended for export; 

(iii) Geographic location of the place 

of production; 

(iv) Location of plants for planting 

within the place of production; 

(v) The plant taxon; and 

(vi) The purchaser’s identity. 

(5) Documentation of program 

procedures. The place of production 

must develop a manual approved by the 

NPPO of the exporting country and 

APHIS that guides the place of 

production’s operation and that 

includes the following components: 

(i) Administrative procedures 

(including roles and responsibilities and 

training procedures); 

(ii) Pest management plan; 

(iii) Place of production internal audit 

procedures; 

(iv) Management of noncompliant 

product or procedures; 

(v) Traceability procedures; and 

(vi) Recordkeeping systems. 

(6) Records. A place of production 

must maintain records on its premises 

as specified by APHIS and the NPPO of 

the exporting country. These records 

must be made available to APHIS and 

the NPPO of the exporting country upon 

request. These documents include all 

the elements described in this paragraph 

(a) and copies of all internal and 

external audit documents and reports. 

(b) Responsibilities of APHIS and the 

NPPO of the exporting country. APHIS 

and the NPPO of the exporting country 

are responsible for collaborating to 

establish program requirements, 

including workplans and compliance 

agreements as necessary, for recognizing 

and implementing particular import 

programs. Technically justified 

modifications to the program may be 

negotiated. The administration of 

program requirements must include 

such elements as clarification of 

terminology, testing and retesting 

requirements, eligibility, the 

nomenclature of certification levels, 

horticultural management, isolation and 

sanitation requirements, inspection, 

documentation, identification and 

labeling, quality assurance, 

noncompliance and remedial measures, 

and postentry quarantine requirements. 

The criteria for approving, suspending, 

removing, and reinstating approval for a 

particular program should be jointly 

developed and agreed upon by APHIS 

and the NPPO of the exporting country. 

Information should be exchanged 

between APHIS and the NPPO of the 

exporting country through officially 

designated contact points. 

(c) Responsibilities of the NPPO of the 

exporting country. (1) The NPPO of the 

exporting country must provide 

sufficient information to APHIS to 

support the evaluation and acceptance 

of export programs. This may include: 

(i) Specific identification of the 

commodity, place of production, and 

expected volume and frequency of 

consignments; 

(ii) Relevant production, harvest, 

packing, handling, and transport details; 

(iii) Pests associated with the plant 

including prevalence, distribution, and 

damage potential; 

(iv) Risk management measures 

proposed for a pest management 

program; and 

(v) Relevant efficacy data. 

(2) A phytosanitary certificate should 

be issued by the NPPO of the exporting 

country unless APHIS and the NPPO of 

the exporting country agree to use other 

documentation in accordance with 

§ 319.37–6(c). 

(3) Other responsibilities of the NPPO 

of the exporting country include: 

(i) Establishing and maintaining 

compliance agreements as necessary; 

(ii) Oversight and enforcement of 

program provisions; 

(iii) Arrangements for monitoring and 

audit; and 

(iv) Maintaining appropriate records. 

(d) Responsibilities of plant brokers 

trading in plants for planting for export. 

Persons trading in plants for planting 

intended for export without growing the 

plants (referred to as plant brokers) must 

be approved by the NPPO of the 

exporting country or its designee. The 

list of plant brokers must be provided to 

APHIS upon request. Approval may 

only be conferred by the NPPO or its 

designee after the participant 

demonstrates that it can meet the 

requirements of this paragraph. 

Approval must be withdrawn if the 

participant fails to meet the conditions 

at any time. Plant brokers must ensure 

the traceability of export consignments 

to an approved place of production or 

production site. Brokers must maintain 

the phytosanitary status of the plants in 

a manner equivalent to an approved 

place of production from purchase, 

storage, and transportation to the export 

destination. Plant brokers must 

document these processes for verifying 

status and maintaining traceability. 

(e) External audits. APHIS and the 

NPPO of the exporting country will 

agree to the requirements for external 

audits. 

(1) APHIS audits. APHIS will evaluate 

the integrated pest risk management 

measures of the NPPO of the exporting 

country before acceptance. This could 

consist of documentation review, site 

visits, and inspection and testing of 

plants produced under the system. 

Following approval, APHIS or its 

designee will monitor and periodically 

audit the system to ensure that it 

continues to meet the stated objectives. 

Audits will include inspection of 

imported plants for planting, site visits, 

and review of the integrated pest risk 

management measures and internal 

audit processes of the place of 

production and the NPPO of the 

exporting country. 

(2) Audits by the NPPO of the 

exporting country. The NPPO must 

arrange for audits of the exporting 

system. Audits may be conducted by the 

NPPO or its designee and may consist 

of inspection and testing of plants for 

planting and the documentation and 

management practices as they relate to 

the program. Audits should verify that: 

(i) The places of production in the 

program are free of quarantine pests; 

(ii) Program participants are 

complying with the specified standards; 

(iii) The integrated pest management 

measures continue to meet APHIS 

requirements; and 

(iv) Arrangements with designees are 

complied with. 

(f) Noncompliance. (1) The exporting 

NPPO must notify APHIS of 

noncompliance within the integrity of 

the system or noncompliance by a place 

of production that affects the 

phytosanitary integrity of the 

commodity. The requirements for 

notification will be determined between 

the NPPO of the exporting country and 

APHIS. 

(2) Regulatory responses to program 

failures will be based on existing 

bilateral agreements. Contingency plans 

may be established in advance to ensure 

that alternative measures are available 

in the event that all or part of a program 

fails. APHIS will specify the 

consequences of noncompliance to the 

NPPO of the exporting country. The 

NPPO must specify the consequences of 

noncompliance to the participants in 

the program. These may vary depending 

on the nature and severity of the 

infraction. In addition, remedial 

measures should be specified to enable 

a suspended or decertified place of 

production or plant broker to become 

eligible for reinstatement or 

recertification. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24661 

(3) Places of production or plant 

brokers that do not meet the conditions 

of the program must be suspended. 

Plants for planting must not be exported 

from a place of production or a plant 

broker that has failed to meet the 

program requirements. 

(4) The effectiveness of remedial 

measures taken must be verified before 

reinstatement to the program by the 

exporting NPPO and, where 

appropriate, by APHIS. 

§ 319.37–22 Trust fund agreements. 

If APHIS personnel need to be 

physically present in an exporting 

country or region to facilitate the 

exportation of plants for planting and 

APHIS services are to be funded by the 

NPPO of the exporting country or a 

private export group, then the NPPO or 

the private export group must enter into 

a trust fund agreement with APHIS that 

is in effect at the time APHIS’ services 

are needed. Under the agreement, the 

NPPO of the exporting country or the 

private export group must pay in 

advance all estimated costs that APHIS 

expects to incur in providing inspection 

services in the exporting country. These 

costs will include administrative 

expenses incurred in conducting the 

services and all salaries (including 

overtime and the Federal share of 

employee benefits), travel expenses 

(including per diem expenses), and 

other incidental expenses incurred by 

the inspectors in performing services. 

The agreement must require the NPPO 

of the exporting country or region or a 

private export group to deposit a 

certified or cashier’s check with APHIS 

for the amount of those costs, as 

estimated by APHIS. The agreement 

must further specify that, if the deposit 

is not sufficient to meet all costs 

incurred by APHIS, the NPPO of the 

exporting country or a private export 

group must deposit with APHIS, before 

the services will be completed, a 

certified or cashier’s check for the 

amount of the remaining costs, as 

determined by APHIS. After a final 

audit at the conclusion of each shipping 

season, any overpayment of funds 

would be returned to the NPPO of the 

exporting country or region or a private 

export group, or held on account. 

§ 319.37–23 Postentry quarantine. 

(a) Postentry quarantine. One specific 

restriction that may be placed upon the 

importation of a type of plants for 

planting in accordance with § 319.37–20 

is that it be grown in postentry 

quarantine. A list of taxa required to be 

imported into postentry quarantine may 

be found in the Plants for Planting 

Manual. Plants for planting grown in 

postentry quarantine must be grown 

under postentry quarantine conditions 

specified in paragraphs (c) and (d) of 

this section, and may be imported or 

offered for importation into the United 

States only: 

(1) If destined for a State that has 

completed a State postentry quarantine 

agreement with APHIS in accordance 

with paragraph (b) of this section; 

(2) If an importer postentry quarantine 

growing agreement has been completed 

and submitted to Plant Protection and 

Quarantine in accordance with 

paragraph (c) of this section. The 

agreement must be signed by the person 

(the importer) applying for a written 

permit for importation of the plants for 

planting in accordance with § 319.37–5; 

and, 

(3) If Plant Protection and Quarantine 

has determined that the completed 

postentry quarantine growing agreement 

fulfills the applicable requirements of 

this section and that services by State 

inspectors are available to monitor and 

enforce the postentry quarantine. 

(b) State postentry quarantine 

agreement. Plants for planting required 

to undergo postentry quarantine in 

accordance with § 319.37–20 may only 

be imported if destined for postentry 

quarantine growing in a State which has 

entered into a written agreement with 

the Animal and Plant Health Inspection 

Service, signed by the Administrator or 

his or her designee and by the State 

Plant Regulatory Official. In accordance 

with the laws of individual States, 

inspection and other postentry 

quarantine services provided by a State 

may be subject to charges imposed by 

the State. A list of States that have 

entered into a postentry quarantine 

agreement in accordance with this 

paragraph can be found in the Plants for 

Planting Manual. 

(c) Importer postentry quarantine 

growing agreements. Any plants for 

planting required to be grown under 

postentry quarantine conditions, as well 

as any increase therefrom, shall be 

grown in accordance with an importer 

postentry quarantine growing agreement 

signed by the person (the importer) 

applying for a written permit in 

accordance with § 319.37–5 for 

importation of the plants for planting 

and submitted to Plant Protection and 

Quarantine. On each importer postentry 

quarantine growing agreement, the 

person shall also obtain the signature of 

the State Plant Regulatory Official for 

the State in which plants for planting 

covered by the agreement will be grown. 

The importer postentry quarantine 

growing agreement shall specify the 

kind, number, and origin of plants to be 

imported; the conditions specified in 

the Plants for Planting Manual under 

which the plants for planting will be 

grown, maintained, and labeled; and the 

reporting requirements in the case of 

abnormal or dead plants for planting. 

The agreement shall certify to APHIS 

and to the State in which the plants for 

planting are grown that the signer of the 

agreement will comply with the 

conditions of the agreement for the 

postentry quarantine growing period 

prescribed for the type of plants for 

planting in the Plants for Planting 

Manual. 

(d) Applications for permits. A 

completed importer postentry 

quarantine agreement shall accompany 

the application for a written permit for 

plants for planting required to be grown 

under postentry quarantine conditions. 

Importer postentry quarantine 

agreement forms are available without 

charge from the Animal and Plant 

Health Inspection Service, Plant 

Protection and Quarantine, Permit Unit, 

4700 River Road Unit 136, Riverdale, 

MD 20737–1236 or on the Internet at 

http://www.aphis.usda.gov/permits/ 

ppq_epermits.shtml. 

(e) Inspector-ordered disposal, 

movement, or safeguarding of plants for 

planting; costs and charges, civil and 

criminal liabilities—(1) Growing at 

unauthorized sites. If an inspector 

determines that any plants for planting 

subject to the postentry quarantine 

growing requirements of this section, or 

any increase therefrom, is being grown 

at an unauthorized site, the inspector 

may file an emergency action 

notification (PPQ form 523) with the 

owner of the plants for planting or the 

person who owns or is in possession of 

the site on which the plants for planting 

is being grown. The person named in 

the form 523 must, within the time 

specified in form 523, sign a postentry 

quarantine growing agreement, destroy, 

ship to a point outside the United 

States, move to an authorized postentry 

quarantine site, and/or apply treatments 

or other safeguards to the plants for 

planting, the increase therefrom, or any 

portion of the plants for planting or the 

increase therefrom, as prescribed by an 

inspector to prevent the introduction of 

quarantine pests into the United States. 

In choosing which action to order and 

in setting the time limit for the action, 

the inspector shall consider the degree 

of pest risk presented by the quarantine 

pests associated with the type of plants 

for planting (including increase 

therefrom), the types of other host 

materials for the pest in or near the 

growing site, the climate and season at 

the site in relation to the pest’s survival, 

and the availability of treatment 

facilities. 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
24662 Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 

(2) Growing at authorized sites. If an 

inspector determines that any plants for 

planting, or any increase therefrom, 

grown at a site specified in an 

authorized postentry quarantine 

growing agreement is being grown 

contrary to the provisions of this 

section, including in numbers greater 

than the number approved by the 

postentry quarantine growing 

agreement, or in a manner that 

otherwise presents a risk of introducing 

quarantine pests into the United States, 

the inspector shall issue an emergency 

action notification (PPQ form 523) to the 

person who signed the postentry 

quarantine growing agreement. That 

person shall be responsible for carrying 

out all actions specified in the 

emergency action notification. The 

emergency action notification may 

extend the time for which the plants for 

planting and the increase therefrom 

must be grown under the postentry 

quarantine conditions specified in the 

authorized postentry quarantine 

growing agreement, or may require that 

the person named in the notification 

must destroy, ship to a point outside the 

United States, or apply treatments or 

other safeguards to the plants for 

planting, the increase therefrom, or any 

portion of the plants for planting or the 

increase therefrom, within the time 

specified in the emergency action 

notification. In choosing which action to 

order and in setting the time limit for 

the action, the inspector shall consider 

the degree of pest risk presented by the 

quarantine pests associated with the 

type of plants for planting (including 

increase therefrom), the types of other 

host materials for the pest in or near the 

growing site, the climate and season at 

the site in relation to the pest’s survival, 

and the availability of treatment 

facilities. 

(3) Costs and charges. All costs 

pursuant to any action ordered by an 

inspector in accordance with this 

section shall be borne by the person 

who signed the postentry quarantine 

growing agreement covering the site 

where the plants for planting were 

grown, or if no such agreement was 

signed, by the owner of the plants for 

planting at the growing site. 

§ 319.40–2 [Amended] 

■ 8. In § 319.40–2, paragraph (c) is 

amended by removing the words 

‘‘Nursery Stock, Plants, Roots, Bulbs, 

Seeds, and Other Plant Products’’ and 

adding the words ‘‘Plants for Planting’’ 

in their place. 

■ 9. Section 319.41 is amended as 

follows: 

■ a. By redesignating paragraph (d) as 

paragraph (e). 

■ b. By adding a new paragraph (d) to 

read as set forth below. 

§ 319.41 Notice of quarantine. 

* * * * * 

(d) The importation of plants 

(including any plant parts) of any of the 

taxa listed in paragraph (b) of this 

section that are for planting or capable 

of being planted is restricted under 

‘‘Subpart—Plants for Planting’’ of this 

part. 

* * * * * 

■ 10. Section 319.55 is amended as 

follows: 

■ a. By revising paragraphs (a) and (b) 

to read as set forth below. 

■ b. By redesignating paragraph (d) as 

paragraph (e). 

■ c. By adding a new paragraph (d) to 

read as set forth below. 

§ 319.55 Notice of quarantine. 

(a) The fact has been determined by 

the Secretary of Agriculture, and notice 

is hereby given: 

(1) That injurious fungous diseases of 

rice, including downy, mildew 

(Sclerospora macrospora), leaf smut 

(Entyloma oryzae), blight (Oospora 

oryzetorum), and glume blotch 

(Melanomma glumarum), as well as 

dangerous insect pests, new to and not 

heretofore widely prevalent or 

distributed within and throughout the 

United States, exist, as to one or more 

of such diseases and pests, in Europe, 

Asia, Africa, Central America, South 

America, and other foreign countries 

and localities, and may be introduced 

into this country through importations 

of rice straw and rice hulls; and 

(2) That the unrestricted importation 

of rice straw and rice hulls may result 

in the entry into the United States of the 

injurious plant diseases heretofore 

enumerated, as well as insect pests. 

(b) To prevent the introduction into 

the United States of the plant pests and 

diseases indicated above, the Secretary 

has determined that it is necessary to 

restrict the importation of rice straw and 

rice hulls from all foreign locations, 

except as otherwise provided in this 

subpart. 

* * * * * 

(d) The importation of seed or paddy 

rice is restricted under ‘‘Subpart—Plants 

for Planting’’ of this part. 

* * * * * 

§ 319.55–2 [Amended] 

■ 11. Section 319.55–2 is amended as 

follows: 

■ a. In paragraph (a), by removing the 

words ‘‘seed or paddy rice from Mexico 

or’’ and the words ‘‘from any country,’’. 

■ b. In paragraph (c), by removing the 

word ‘‘mader’’ and adding the word 

‘‘made’’ in its place. 

§ 319.55–3 [Amended] 

■ 12. Section 319.55–3 is amended as 

follows: 

■ a. By removing paragraph (a) and 

redesignating paragraphs (b), (c), and (d) 

as paragraphs (a), (b), and (c), 

respectively. 

■ b. In newly redesignated paragraph 

(a), by removing the words ‘‘from all 

foreign countries’’. 

■ c. In newly redesignated paragraph 

(b), by removing the words ‘‘seed or 

paddy rice,’’ and by removing the 

comma after the word ‘‘straw’’. 

§ 319.55–6 [Amended] 

■ 13. Section 319.55–6 is amended as 

follows: 

■ a. By removing and reserving 

paragraph (a). 

■ b. By redesignating paragraphs (c)(1) 

and (c)(2) as paragraphs (b)(3) and (b)(4). 

■ c. By removing the designation and 

heading of paragraph (c). 

§ 319.55–7 [Amended] 

■ 14. Section 319.55–7 is amended by 

removing the words ‘‘seed and paddy 

rice from Mexico, and of’’ and the words 

‘‘from all foreign countries and 

localities,’’. 

§ 319.59–1 [Amended] 

■ 15. In § 319.59–1, the definition of 

grain is amended by adding the words 

‘‘and not for planting’’ before the period. 

■ 16. Section 319.59–2 is amended as 

follows: 

■ a. By removing and reserving 

paragraph (a). 

■ b. In paragraph (b), by removing the 

words ‘‘Triticum spp. plants, articles’’ 

and adding the word ‘‘Articles’’ in their 

place. 

■ c. By adding a new paragraph (c) to 

read as set forth below. 

§ 319.59–2 General import prohibitions; 

exceptions. 

* * * * * 

(c) The importation of any host crops 

(including seed and any other plant 

parts) that are for planting or capable of 

being planted is restricted under 

‘‘Subpart—Plants for Planting’’ of this 

part. 

■ 17. Section 319.59–3 is amended by 

revising paragraph (a) to read as follows: 

§ 319.59–3 Articles prohibited importation 

pending risk evaluation. 

* * * * * 

(a) The following articles of Triticum 

spp. (wheat) or of Aegilops spp. (barb 

goatgrass, goatgrass): Straw (other than 

straw, with or without heads, which has 


tkelley on DSK3SPTVN1PROD with PROPOSALS6
Federal Register / Vol. 78, No. 80 / Thursday, April 25, 2013 / Proposed Rules 24663 

been processed or manufactured for use 

indoors, such as for decorative purposes 

or for use in toys); chaff; and products 

of the milling process (i.e., bran, shorts, 

thistle sharps, and pollards) other than 

flour. 

* * * * * 

§ 319.59–4 [Amended] 

■ 18. In § 319.59–4, paragraph (a)(2) is 

amended by removing the word ‘‘seed,’’. 

§ 319.73–1 [Amended] 

■ 19. In § 319.73–1, the definition of 

unroasted coffee is amended by adding 

the words ‘‘intended for processing’’ 

before the period. 

■ 20. Section 319.73–2 is amended by 

revising paragraphs (a)(2) and (b) to read 

as follows: 

§ 319.73–2 Products prohibited 

importation. 

(a) * * * 

(2) Coffee leaves; and 

* * * * * 

(b) The importation of any coffee 

plants (including bare seeds, seeds in 

pulp, and any other plant parts) that are 

for planting or capable of being planted 

is restricted under ‘‘Subpart—Plants for 

Planting’’ of this part. 

§ 319.74–1 [Amended] 

■ 21. In § 319.74–1, the definition of cut 

flower is amended by adding the words 

‘‘and not for planting’’ after the word 

‘‘state’’. 

§ 319.75–1 [Amended] 

■ 22. Section 319.75–1 is amended by 

removing the definition of nursery 

stock. 

■ 23. Section 319.75–2 is amended by 

revising footnote 1 to read as set forth 

below. 

§ 319.75–2 Restricted articles.1

* * * * * 1The importation of restricted articles may 

be subject to prohibitions or restrictions 

under other provisions of 7 CFR part 319. For 

example, fresh whole chilies (Capsicum spp.) 

and fresh whole red peppers (Capsicum spp.) 

from Pakistan are prohibited from being 

imported into the United States under the 

provisions of Subpart—Fruits and Vegetables 

of this part, and the importation of any 

restricted articles that are for planting or 

capable of being planted is restricted under 

Subpart—Plants for Planting of this part. 

§ 319.75–9 [Amended] 

■ 24. In § 319.75–9, paragraphs (a), (b), 

and (c) are amended by removing the 

words ‘‘nursery stock, plant,’’ and the 

words ‘‘root, bulb,’’ each time they 

occur. 

§ 319.77–2 [Amended] 

■ 25. Section 319.77–2 is amended as 

follows: 

■ a. In the introductory text of the 

section, by removing the words 

‘‘through (g)’’ and adding the words 

‘‘through (e)’’ in their place. 

■ b. By removing paragraphs (b) and (c) 

and redesignating paragraphs (d) 

through (h) as (b) through (f), 

respectively. 

■ 26. Section 319.77–4 is amended as 

follows: 

■ a. By revising footnote 1 to read as set 

forth below. 

■ b. In paragraphs (a)(1) and (a)(2), by 

removing the words ‘‘, trees with roots, 

and shrubs with roots and persistent 

woody stems’’ each time they occur. 

■ c. In paragraphs (a)(2)(i) and (a)(2)(ii), 

by removing the words ‘‘or shrubs’’ each 

time they occur. 

§ 319.77–4 Conditions for the importation 

of regulated articles. 

(a) * * *1

* * * * * 1Trees and shrubs from Canada may be 

subject to additional restrictions under 

‘‘Subpart—Logs, Lumber, and Other 

Unmanufactured Wood Articles’’ (§§319.40– 

1 through 310.40–11 of this part). 

PART 340—INTRODUCTION OF 

ORGANISMS AND PRODUCTS 

ALTERED OR PRODUCED THROUGH 

GENETIC ENGINEERING WHICH ARE 

PLANT PESTS OR WHICH THERE IS 

REASON TO BELIEVE ARE PLANT 

PESTS 

■ 27. The authority citation for part 340 

continues to read as follows: 

Authority: 7 U.S.C. 7701–7772 and 7781– 

7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 

371.3. 

§ 340.0 [Amended] 

■ 28. In § 340.0, footnote 1 is amended 

as follows: 

■ a. By removing the words ‘‘Nursery 

Stock, Plants, Roots, Bulbs, Seeds, and 

Other Plant Products’’ and adding the 

words ‘‘Plants for Planting’’ in their 

place. 

■ b. By removing the words ‘‘nursery 

stock’’ both times they appear and 

adding the words ‘‘plants for planting’’ 

in their place. 

■ c. By removing the words ‘‘stock is’’ 

and adding the words ‘‘plants are’’ in 

their place. 

Done in Washington, DC, this 18th day of 

April 2013. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2013–09737 Filed 4–24–13; 8:45 am] 

BILLING CODE 3410–34–P 


tkelley on DSK3SPTVN1PROD with PROPOSALS6