63060 Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2005-0103. 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation, to the existence of the 

investigation, which in some cases may be 

classified, and reveal investigative interest on 

the part of DHS or ICE. Disclosure of the 

accounting would therefore present a serious 

impediment to law enforcement efforts and/ 

or efforts to preserve national security. 

Disclosure of the accounting would also 

permit the individual who is the subject of 

a record to impede the investigation, tamper 

with witnesses or evidence, and avoid 

detection or apprehension, which would 

undermine the entire investigative process. 

(b) From subsection (d) (Access to Records) 

because access to the records contained in 

this system of records could inform the 

subject of an investigation pertaining to an 

immigration matter, which in some cases 

may be classified, and prematurely reveal 

investigative interest on the part of DHS or 

another agency. Access to the records could 

permit the individual who is the subject of 

a record to impede the investigation, tamper 

with witnesses or evidence, and avoid 

detection or apprehension. Amendment of 

the records could interfere with ongoing 

investigations and law enforcement activities 

and would impose an impossible 

administrative burden by requiring 

investigations to be continuously 

reinvestigated. In addition, permitting access 

and amendment to such information could 

disclose security-sensitive information that 

could be detrimental to homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of federal immigration law, the 

accuracy of information obtained or 

introduced occasionally may be unclear or 

the information may not be strictly relevant 

or necessary to a specific investigation. In the 

interests of effective law enforcement and for 

the protection of national security, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject of the nature or existence of an 

investigation, which could cause interference 

with the investigation, a related inquiry or 

other law enforcement activities, some of 

which may be classified. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise the existence of 

a confidential investigation or reveal the 

identity of witnesses or confidential 

informants. 

(f) From subsections (e)(4)(G) and (H) 

(Agency Requirements), (f) (Agency Rules), 

and (g) (Civil Remedies) because portions of 

this system are exempt from the individual 

access provisions of subsection (d). 

(g) From subsection (e)(5) (Collection of 

Information) because in the collection of 

information for law enforcement purposes it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with ICE’s ability to obtain, serve, 

and issue subpoenas, warrants and other law 

enforcement mechanisms that may be filed 

under seal, and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (g) to the extent that 

the system is exempt from other specific 

subsections of the Privacy Act. 

Hugo Teufel III, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E8–24996 Filed 10–22–08; 8:45 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2005–0103] 

RIN 0579–AB98 

Special Need Requests Under the Plant 

Protection Act 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending our 

domestic quarantine regulations to 

establish a process by which a State or 

political subdivision of a State could 

request approval to impose prohibitions 

or restrictions on the movement in 

interstate commerce of specific articles 

that are in addition to the prohibitions 

and restrictions imposed by the Animal 

and Plant Health Inspection Service. 

The Plant Protection Act provides that 

States or political subdivisions of States 

may make such special need requests, 

but there are currently no procedures in 

place for their submission or 

consideration. This action establishes a 

process by which States may make a 

special need request. 

DATES: Effective Date: November 24, 

2008. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Osama El-Lissy, Director, Emergency 

Management, Emergency and Domestic 

Programs, PPQ, APHIS, 4700 River Road 

Unit 134, Riverdale, MD 20737–1237; 

(301) 734–5459. 

SUPPLEMENTARY INFORMATION: 

Background 

The Plant Protection Act (PPA, 7 

U.S.C. 7701 et seq.) gives authority to 

the Secretary of Agriculture to prohibit 

or restrict the importation, entry, 

exportation, or movement in interstate 

commerce of any plant, plant product, 

biological control organism, noxious 

weed, article, or means of conveyance if 

the Secretary determines that the 

prohibition or restriction is necessary to 

prevent the introduction of a plant pest 

or noxious weed into the United States, 

or the dissemination of a plant pest or 

noxious weed within the United States. 

The Secretary has delegated this 

authority to the Administrator of the 

Animal and Plant Health Inspection 

Service (APHIS). 

Under section 436 of the PPA 

(7 U.S.C. 7756), no State or political 

subdivision of a State may regulate the 

movement in interstate commerce of 

any article, means of conveyance, plant, 

biological control organism, plant pest, 

noxious weed, or plant product in order 

(1) to control a plant pest or noxious 

weed; (2) to eradicate a plant pest or 

noxious weed; or (3) to prevent the 

introduction or dissemination of a 

biological control organism, plant pest, 

or noxious weed if the Secretary has 

issued a regulation or order to prevent 

the dissemination of the biological 

control organism, plant pest, or noxious 

weed within the United States. The only 

exceptions to this prohibition are when 

a State or political subdivision of a State 

imposes regulations which are 

consistent with and do not exceed the 

regulations or orders issued by the 

Secretary, or when the State or political 

subdivision of a State demonstrates to 

the Secretary, and the Secretary finds, 

that there is a special need for 

additional prohibitions or restrictions 

based on sound scientific data or a 

thorough risk assessment. 

On April 4, 2006, we published in the 

Federal Register (71 FR 16711–16716, 

Docket No. APHIS–2005–0103) a 

proposal 1 to amend the regulations by 

adding a new ‘‘Subpart—Special Need 

Requests’’ (7 CFR 301.1 through 301.1– 

3) in which we set out procedures for 

the submission and handling of special 

need requests. 

We solicited comments concerning 

our proposal for 60 days ending June 5, 

2006. We received 17 comments by that 

date. They were from representatives of 

State agriculture departments, 

environmental groups, industry 

organizations, and private citizens. 

While the majority of these commenters 

supported the establishment of criteria 

for the submission of special need 

requests, all of the commenters 

expressed some reservations, which are 

discussed below by topic. We are 


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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 63061 

making only minor changes in response 

to those comments. 

Several commenters were concerned 

that the timeframe for APHIS to review 

and make a decision to grant or deny a 

special need request would be too long 

and could potentially hinder rapid 

response to the introduction or spread 

of a pest. Several of these commenters 

proposed their own timelines for each 

step in the review and decisionmaking 

process or suggested publishing the 

receipt of a special need request as an 

interim rule. 

We disagree that the special need 

request process would hinder timely 

response to the introduction or spread 

of pests. The special need request 

process is intended as a way for States 

to request authorization to establish 

additional prohibitions or restrictions 

for pests that APHIS already currently 

regulates. There are other processes in 

place for responding to new pests. In 

addition, the review and 

decisionmaking process for special need 

requests would not be a rulemaking 

process, as we would not be amending 

the regulations to reflect our granting of 

a request. As stated in the proposed 

rule, upon receipt of a complete special 

need request, we would publish a notice 

in the Federal Register announcing the 

availability for review and comment of 

the request along with all materials 

submitted in support of the request. 

Following the comment period, we 

would publish another notice advising 

the public of the Administrator’s 

decision to either grant or deny the 

special need request based upon his or 

her review and evaluation of the 

information submitted in support of the 

request and of any comments received. 

If a special need request is time 

sensitive, the State making the request 

should give APHIS an idea of its 

urgency so that we may prioritize our 

review and decisionmaking regarding 

that request. 

One commenter stated that a special 

need exception should automatically 

expire after a certain period of time 

unless a State can successfully 

demonstrate that there is a continued 

need for the exemption. 

We agree that a special need 

exception may no longer be necessary 

after a certain period of time. Therefore, 

this final rule provides that a special 

need exception, if granted, would be 

applicable for 2 years, after which the 

State or political subdivision of a State 

must submit a request for renewal of the 

exemption. If a renewal is submitted, it 

would need to address the same criteria 

as the initial request (an updated risk 

analysis, survey, etc.) and would have to 

show that a special need still exists. The 

renewal would have to be submitted no 

sooner than 6 months and no later than 

3 months prior to the end of the 2-year 

applicability period for the initial 

exception. Once we have received a 

request for a renewal, we would follow 

the same notice and comment process 

we used for the initial granting of the 

special need exception. If, by the end of 

the 2-year applicability period, the State 

or political subdivision of a State does 

not submit a renewal, the State or 

political subdivision of a State’s special 

need exception will lapse and the State 

or political subdivision of a State will 

have to reapply for the special need 

exception. 

Several commenters were concerned 

about the process used in circumstances 

where there may be insufficient data 

regarding the pest potential of a specific 

species or expressed concern regarding 

the burden on States to answer the 

criteria for the special need request 

comprehensively, particularly with 

respect to the cost of surveys. Several 

commenters suggested that, similar to 

the process used by the World Trade 

Organization (WTO), a State or political 

subdivision of a State be allowed to 

adopt temporary restrictions until 

APHIS has had time to evaluate whether 

such restrictions are valid. 

As stated above, the special need 

request process is intended as a way for 

States to request additional prohibitions 

or restrictions for pests that APHIS 

already currently regulates. Therefore, 

we would expect that only in rare 

instances would there not be sufficient 

data present about a certain pest. We 

will take lack of data into account in 

such instances. With respect to 

temporary restrictions, the PPA requires 

that special need exceptions be based on 

sound scientific data or a thorough risk 

assessment; therefore we do not believe 

that special need exceptions should be 

granted until a full review of the 

available data has been conducted. 

Several commenters requested 

clarification or definitions of terms used 

within the rule, such as ‘‘special need,’’ 

‘‘sound scientific data,’’ and ‘‘risk 

assessment.’’ Several commenters also 

asked for specific criteria regarding the 

type of data we would accept in 

consideration of a special need request 

or whether both ‘‘sound scientific data’’ 

and a ‘‘thorough risk assessment’’ are 

needed to make a special need request. 

Some commenters suggested that it 

would be helpful to adopt the 

definitions and standards used by 

international organizations such as the 

WTO, the International Plant Protection 

Convention (IPPC), or the Food and 

Agriculture Organization. 

These terms are drawn from the text 

of the Plant Protection Act (‘‘* * * a 

State demonstrates to the Secretary, and 

the Secretary finds, that there is a 

special need for additional prohibitions 

or restrictions based on sound scientific 

data or a thorough risk assessment’’), 

and we do not consider them to have 

any specialized meaning beyond their 

commonly understood meanings. 

Section 301.1–2 of the regulations 

clearly outlines the type of information 

required for consideration of a special 

need request and provides for the 

submission of risk analyses or other 

scientific data in support of a special 

need request. 

Another commenter asked whether 

States may petition USDA to conduct 

risk assessments or whether States 

would be required to conduct their own 

assessments. 

We believe that States would be in a 

better position to come up with the 

information required under § 301.1–2 

than APHIS, as they would be more 

aware of the special circumstances that 

led them to apply for additional 

measures. However, given that special 

need requests only apply to pests that 

APHIS is already currently regulating, 

we welcome, and will accommodate, 

requests from States for any information 

we have gathered on such pests. 

Two commenters expressed concern 

that the proposed rule promotes 

economic protectionism by allowing 

States to restrict interstate movement in 

order to protect a specific crop or 

commodity. 

We disagree that the proposed rule 

promotes economic protectionism. Our 

process for deciding to either grant or 

deny a special need request will be 

determined exclusively on the basis of 

the best available science and the need 

to take the least restrictive action. In 

addition, the decision to grant or deny 

a special need request will be based on 

several specific criteria and each of 

those criteria will need to be satisfied 

through the presentation of compelling, 

science-based evidence. However, we 

have revised our criteria in order to 

clarify that we will not grant a special 

need request based solely on economic 

factors. 

Another commenter suggested that, in 

the event of the withdrawal of a special 

need exception, the special need 

exception be continued through the 

comment period and up to and until a 

withdrawal decision by the 

Administrator. 

As stated in § 301.1–3(d), if the 

Administrator determines that there is 

the need for the withdrawal of a special 

need exception before the renewal date 

of the exception, APHIS will publish a 


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63062 Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 

notice in the Federal Register to inform 

the public of the withdrawal and to 

make the information supporting the 

withdrawal available for review and 

public comment for at least 60 days. A 

withdrawal of a special need exception 

will not come into effect until the close 

of the comment period and evaluation 

of all comments received, after which 

APHIS will publish another notice 

announcing the Administrator’s 

decision to either withdraw or uphold 

the special need exception. 

One commenter was concerned that a 

special need request involving a 

potentially weedy plant might be 

rejected by APHIS on the grounds that 

the plant is ‘‘present’’ in a State or 

political subdivision of a State, when in 

fact the plant is present only in nursery 

or garden settings. 

Our policies for determining when a 

weed is considered to be ‘‘present’’ are 

consistent with IPPC guidelines, 

specifically International Standards for 

Phytosanitary Measures No. 8, 

‘‘Determination of Pest Status in an 

Area’’. We do not envision 

circumstances under which we would 

cite the mere presence of a plant in a 

nursery or garden setting as grounds for 

denying a special need request. 

One commenter expressed concern 

that States may not be aware of what 

they may regulate and when and 

suggested that we state what States may 

regulate with respect to species that are 

and are not subject to a domestic 

quarantine. 

We believe that the PPA adequately 

describes the powers of States with 

respect to interstate movement. As 

noted, States may regulate any plant, 

plant product, biological control 

organism, noxious weed, article, or 

means of conveyance if their regulations 

are consistent with or do not exceed the 

regulations or orders issued by APHIS 

or when there are no Federal regulations 

in place for any such plant, plant 

product, biological control organism, 

noxious weed, article, or means of 

conveyance. 

Several commenters stated that 

special need requests should not be 

limited to States, and that political 

subdivisions of States should be able to 

make special need requests 

independently from States. 

We believe that political subdivisions 

of States might not have the resources 

to submit special need requests on their 

own and we also do not want to usurp 

the power of the States. In addition, we 

wish to clarify that Tribes may make 

special need requests independent from 

States as they are considered to be 

sovereign nations. 

One commenter suggested that States 

that have violated Federal regulations 

by imposing prohibitions or restrictions 

on interstate movement that are in 

addition to current APHIS prohibitions 

or restrictions should be excluded from 

making special need requests. 

We do not believe that the 

commenter’s suggestion is appropriate. 

Instances of States acting contrary to the 

PPA have been very rare. In addition, 

prohibiting States that have acted 

contrary to Federal regulations from 

ever making special need requests may 

prevent us from granting legitimate 

special need requests and thus impair 

our ability to protect American 

agriculture. 

One commenter stated that a special 

need request should only be made when 

a State can demonstrate that there is 

something ‘‘truly so unusual within the 

State’’ and ‘‘that APHIS is incapable of 

regulating for that risk’’. Further, the 

commenter stated that a special need 

request should not be used as a way to 

appeal regulations that a State does not 

agree with. Two other commenters 

stated that the granting of a special need 

request should be rare. 

We agree with the commenters that 

the special need request process is not 

meant as an appeals process for APHIS 

regulations. Our granting of a special 

need request will be based upon the 

soundness of the scientific evidence 

provided by the State in support of its 

request; special need requests may be 

granted frequently or infrequently 

depending on that evidence. 

Several commenters asked that we 

outline who it is in APHIS that will be 

reviewing the special need requests. 

Appropriate and knowledgeable 

reviewers will be selected based on the 

nature and scope of the request. We 

employ experts for each pest that we 

regulate in both the field and at our 

headquarters who are involved on a 

daily basis in the running of the 

regulatory program. We expect that 

these experts, along with other experts 

as needed, would be reviewing material 

submitted in support of special need 

requests. 

One commenter suggested that States 

should demonstrate that the protection 

requested in their special need request 

would not come at the expense of 

neighboring States or political 

subdivisions. A second commenter was 

concerned by this suggestion, stating 

that a State or political subdivision is 

inherently unable to provide data or 

information on behalf of another State 

or political subdivision. 

We agree that States or political 

subdivisions of States should be 

mindful of neighboring States when 

developing their own special need 

requests. However, we would not 

require States to provide specific data 

showing that their special need request 

would not negatively impact other 

States or political subdivisions. Such 

considerations will be taken into 

account during review of a special need 

request. States may also collaborate with 

other States in submitting multi-State 

special need requests. However, the 

special need request must include 

sufficient, detailed information to allow 

APHIS to evaluate and make a 

determination to either grant or deny 

the special need request for each State 

on an individual basis. In order to 

explicitly provide for multi-State special 

need requests, we are adding this 

information to the introductory text of 

proposed § 301.1–2(a). 

Several commenters questioned 

whether a special need request would 

be applicable to a pathway rather than 

to just individual pests. 

As stated in the proposed rule, the 

PPA gives authority to the Secretary of 

Agriculture to prohibit or restrict, 

among other things, the importation, 

entry, exportation, or movement in 

interstate commerce of any article or 

means of conveyance if the Secretary 

determines that the prohibition or 

restriction is necessary to prevent the 

introduction of a plant pest or noxious 

weed into the United States, or the 

dissemination of a plant pest or noxious 

weed within the United States. We 

believe that the special need criteria 

allow for flexibility in what a State 

considers to be a factor that makes it 

‘‘particularly vulnerable’’ by allowing 

States to provide information regarding 

‘‘any other special basis for the request 

for additional restrictions or 

prohibitions.’’ 

One commenter suggested that 

proposed § 301.1–2(a)(4) be changed to 

include contiguous borders with an area 

infested with a pest as a circumstance 

that renders a State ‘‘particularly 

vulnerable.’’ 

We do not believe it is necessary to 

change proposed § 301.1–2(a)(4) as 

suggested because States will have the 

opportunity to include such information 

in their responses to the criteria in 

paragraphs (a)(1) and (a)(2) of that 

section. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the change discussed in this 

document. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been reviewed under 

Executive Order 12866. This rule has 


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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 63063 

been determined to be significant for the 

purposes of Executive Order 12866 and, 

therefore, has been reviewed by the 

Office of Management and Budget. 

This rule amends our domestic 

quarantine regulations to establish a 

process by which a State or political 

subdivision of a State could request 

approval to impose prohibitions or 

restrictions on the movement in 

interstate commerce of specific articles 

that are in addition to the prohibitions 

and restrictions imposed by APHIS. The 

PPA provides that States or political 

subdivisions of States may make such 

special need requests. This action 

establishes a process by which States 

may make a special need request. 

For this rule, we have prepared an 

economic analysis. The economic 

analysis provides a cost-benefit analysis 

as required by Executive Order 12866, 

as well as an analysis of the potential 

economic affects of this final rule on 

small entities, as required under 5 

U.S.C. 604. The economic analysis is set 

forth below. 

Expected Benefits 

The principal benefit for entities in a 

special need area would be the pest risk 

reduction attributable to the action. The 

risk of entry and establishment of a pest 

of concern with and without the 

granting of a special need request would 

need to be estimated before the benefit 

of the reduced risk could be determined. 

However, the risk of a pest of concern 

entering and becoming established in an 

area may be difficult to estimate. 

Other possible benefits of a special 

need request would be easier to 

calculate. Reduced pest risk due to 

additional restrictions or prohibitions 

may mean that certain mitigation 

measures in the special need area would 

no longer be considered necessary. 

There may be less need for inspections, 

special permits, certain pesticide 

applications, special handling or 

packaging, or other safeguards practiced 

or required prior to the granting of the 

special need request. Costs forgone once 

the request has been granted would 

represent benefits of the action. 

Agricultural and other entities in a 

special need area may also benefit from 

the reduced availability of articles 

restricted or prohibited because of the 

special need request. Restricted supplies 

from sources outside the special need 

area could create increased market 

opportunities for suppliers within the 

area. If quantities normally purchased 

could not be provided by suppliers 

within the special need area (or from 

outside sources that do not present a 

pest risk), then suppliers likely would 

benefit from an increase in price. 

Expected Costs 

Costs would be incurred both in the 

special need area and in the area placed 

under additional restrictions or 

prohibitions. In each case, the size of 

the impact would depend upon the 

volume of supply affected by a special 

need request. As just described, prices 

in a special need area may increase if 

the available quantity of an article is 

reduced because of restrictions or 

prohibitions. But gains for suppliers 

within the special need area from price 

increases would come at the expense of 

the area’s consumers, and overall there 

would be a net loss in social welfare. 

Losses may be incurred not only by endusers, but also by intermediary entities. 

Stores selling the restricted articles 

(nurseries, landscaping companies, 

grocery stores) may face declining 

demand, depending upon the response 

of consumers to the price increase, and 

reduced net revenues. 

For the area placed under additional 

restrictions or prohibitions because of a 

special need request, sales of affected 

articles may decline if other 

replacement markets are not found. 

Even if shipments to the special need 

area can be maintained, additional costs 

may be incurred. For example: 

• Growers may be required to have 

inspections conducted more frequently 

than APHIS would otherwise require (a 

cost that may be borne by the State or 

political subdivision). 

• Growers (or the State or political 

subdivision) may be required to pay for 

special phytosanitary certificates or 

permits. 

• Growers may incur costs related to 

additional risk mitigations, such as 

particular pesticide applications or 

treatments, netting, or special 

greenhouse equipment. 

• Additional inspections or 

restrictions may result in shipping 

delays. 

• Shipping companies may 

experience reduced business or may 

face additional costs related to container 

or sealing requirements of the special 

need request. 

Expected Net Effects 

The overriding benefit for an area 

granted a special need request would be 

the reduced risk of pest entry and 

establishment. Other market-related 

benefits are likely to be outweighed by 

costs incurred in the special need area 

and in the area placed under additional 

restrictions or prohibitions. Costs, 

including those associated with 

additional risk mitigation requirements, 

may be borne by agricultural entities, 

the public sector, or, most likely, a 

combination of the two. 

Final Regulatory Flexibility Analysis 

Need for and objectives of the rule. 

Section 436(b) of the Plant Protection 

Act requires that a State demonstrate to 

the Secretary that it has a special need 

for additional restrictions or 

prohibitions, that the Secretary agree 

that there is a special need, and that the 

additional restrictions and prohibitions 

requested by the State be based on 

sound scientific data or a thorough risk 

assessment. This rule establishes 

specific criteria by which a special need 

request from a State will be evaluated. 

The desirability of specific criteria for 

evaluating special need requests has 

become apparent from requests received 

by the Agency from several States for 

additional restrictions or prohibitions 

on the interstate movement of articles 

that would be more restrictive than 

those currently imposed, for example, 

by the Phytophthora ramorum 

regulations in 7 CFR 301.92 through 

301.92–12. 

Summary of significant issues raised 

in public comment in response to the 

initial regulatory flexibility analysis and 

any changes made in the proposed rule 

as a result of such comments. APHIS 

did not receive any comments regarding 

the initial regulatory flexibility analysis 

for the proposed rule. 

Small entities that may be affected. 

Agricultural and other entities would 

not be affected by this rule, per se, but 

rather by the special need requests that 

follow. This rule simply establishes a 

process by which States may make a 

special need request and provide the 

Agency with a specific set of evaluation 

criteria. 

U.S. agricultural businesses are 

predominantly small entities. At all 

stages of economic activity— 

production, transportation, processing, 

and wholesale and retail sales— 

agricultural industries are generally 

composed of a large number of small 

firms and a small number of large firms 

(with the latter usually generating the 

major share of industry revenue). Given 

this prevailing pattern, any impacts that 

special need requests may have on 

agricultural businesses can be expected 

generally to affect a large if not 

substantial number of small entities. 

The number of affected small entities 

would vary by request, and would 

depend on the particular circumstances 

in the affected States or political 

subdivisions. 

Reporting, recordkeeping and other 

compliance requirements. This rule 

contains various recordkeeping and 

reporting requirements. These 

requirements were described in the 

proposed rule under the heading 


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63064 Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 

‘‘Paperwork Reduction Act’’ and have 

been approved by the Office of 

Management and Budget. (See the 

‘‘Paperwork Reduction Act’’ section 

below.) 

We expect that costs related to 

preparing a special need request would 

be borne by the public sector, but it is 

possible that agricultural industries (and 

therefore small entities) could incur 

indirect costs depending on 

arrangements for generating the required 

information. Also, the Regulatory 

Flexibility Act’s definition of small 

entities includes small governmental 

jurisdictions, that is, ‘‘governments of 

cities, counties, towns, townships, 

villages, school districts, or special 

districts, with a population of less than 

fifty thousand.’’ Thus, it is possible that 

special need areas could correspond to 

or include small governmental 

jurisdictions. 

Of greater impact than costs 

associated with the preparation of a 

request will be the costs and benefits of 

complying with the additional 

restrictions or prohibitions, once a 

special need request is granted by the 

Agency. Types of benefits and costs that 

may result from a special need request 

are identified at the beginning of this 

document. 

A description of the steps the agency 

has taken to minimize any significant 

economic impact on small entities, and 

reasons for selecting the alternative 

adopted in the final rule. This rule 

establishes a set of criteria for APHIS to 

use in evaluating special need requests 

submitted by special need areas. In and 

of itself, this rule does not impact 

entities, large or small. Alternatives to 

this rule would be to either leave the 

regulations unchanged, or to require a 

different set of criteria than is proposed. 

Leaving the regulations unchanged 

would be unsatisfactory for the public 

and for APHIS. The evaluation process 

for special need requests is currently not 

as effective as it might be due to the lack 

of an explicit set of criteria that States 

and political subdivisions are required 

to address in applying for a special need 

exception. The criteria adopted by this 

rule will provide, we believe, welldefined, scientifically rigorous basis for 

the submission and evaluation of 

special need requests pursuant to the 

requirements of the PPA. 

APHIS considers the criteria to be 

fully sufficient for evaluation purposes. 

We reiterate that this final rule, in itself, 

would not affect small entities, but 

rather would influence future actions— 

granting of special need requests—that 

may affect small entities. 

Executive Order 12372 

This program/activity is listed in the 

Catalog of Federal Domestic Assistance 

under No. 10.025 and is subject to 

Executive Order 12372, which requires 

intergovernmental consultation with 

State and local officials. (See 7 CFR part 

3015, subpart V.) 

Executive Order 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule: (1) Preempts 

all State and local laws and regulations 

that are inconsistent with this rule; (2) 

has no retroactive effect; and (3) does 

not require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Paperwork Reduction Act 

In accordance with the Paperwork 

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

et seq.), the information collection or 

recordkeeping requirements included in 

this rule have been approved by the 

Office of Management and Budget 

(OMB) under OMB control number 

0579–0291. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

■ Accordingly, we are amending 7 CFR 

part 301 as follows: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 1. The authority citation for part 301 

continues to read as follows: 

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

7786; 7 CFR 2.22, 2.80, and 371.3. 

Section 301.75–15 issued under Sec. 204, 

Title II, Public Law 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75– 

16 issued under Sec. 203, Title II, Public Law 

106–224, 114 Stat. 400 (7 U.S.C. 1421 note). 

■ 2. Part 301 is amended by adding a 

new ‘‘Subpart—Special Need Requests,’’ 

§§ 301.1 through 301.1–3, to read as 

follows: 

Subpart—Special Need Requests 

Sec. 

301.1 Purpose and scope. 

301.1–1 Definitions. 

301.1–2 Criteria for special need requests. 

301.1–3 Action on special need requests. 

Subpart—Special Need Requests 

§ 301.1 Purpose and scope. 

(a) Under section 436 of the Plant 

Protection Act (7 U.S.C. 7756), a State 

or political subdivision of a State may 

not impose prohibitions or restrictions 

upon the movement in interstate 

commerce of articles, means of 

conveyance, plants, plant products, 

biological control organisms, plant 

pests, or noxious weeds if the Secretary 

has issued a regulation or order to 

prevent the dissemination of the 

biological control organism, plant pest, 

or noxious weed within the United 

States. The only exceptions to this are: 

(1) If the prohibitions or restrictions 

issued by the State or political 

subdivision of a State are consistent 

with and do not exceed the regulations 

or orders issued by the Secretary, or 

(2) If the State or political subdivision 

of a State demonstrates to the Secretary 

and the Secretary finds that there is a 

special need for additional prohibitions 

or restrictions based on sound scientific 

data or a thorough risk assessment. 

(b) The regulations in this subpart 

provide for the submission and 

consideration of special need requests 

when a State or a political subdivision 

of a State seeks to impose prohibitions 

or restrictions on the movement in 

interstate commerce of articles, means 

of conveyance, plants, plant products, 

biological control organisms, plant 

pests, or noxious weeds that are in 

addition to the prohibitions or 

restrictions imposed by this part or by 

a Federal Order. 

§ 301.1–1 Definitions. 

Administrator. The Administrator, 

Animal and Plant Health Inspection 

Service (APHIS), or any person 

authorized to act for the Administrator. 

Animal and Plant Health Inspection 

Service (APHIS). The Animal and Plant 

Health Inspection Service of the United 

States Department of Agriculture. 

Biological control organism. Any 

enemy, antagonist, or competitor used 

to control a plant pest or noxious weed. 

Interstate commerce. Trade, traffic, or 

other commerce 

(1) From one State into or through any 

other State or 

(2) Within the District of Columbia, 

Guam, the Virgin Islands of the United 

States, or any other territory or 

possession of the United States. 


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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 63065 

Move (moved, movement). Shipped, 

offered to a common carrier for 

shipment, received for transportation or 

transported by a common carrier, or 

carried, transported, moved or allowed 

to be moved. 

Noxious weed. Any plant or plant 

product that can directly or indirectly 

injure or cause damage to crops 

(including nursery stock or plant 

products), livestock, poultry, or other 

interests of agriculture, irrigation, 

navigation, the natural resources of the 

United States, the public health or the 

environment. 

Plant pest. Any living stage of any 

insects, mites, nematodes, slugs, snails, 

protozoa, or other invertebrate animals, 

bacteria, fungi, other parasitic plants or 

reproductive parts thereof, viruses, or 

any organisms similar to or allied with 

any of the foregoing, or any infectious 

substances which can directly or 

indirectly injure or cause disease or 

damage in any plants or parts thereof or 

any processed, manufactured, or other 

products of plants. 

State. The District of Columbia, 

Puerto Rico, the Northern Mariana 

Islands, or any State, territory, or 

possession of the United States. 

§ 301.1–2 Criteria for special need 

requests. 

(a) A special need request, as 

described in § 301.1, may be generated 

by a State or a political subdivision of 

a State. If the request is generated by a 

political subdivision of a State, the 

request must be submitted to APHIS 

through the State. States may also 

collaborate with other States to submit 

multi-State special need requests. 

However, if submitted, the multi-State 

special need request must include 

information in sufficient detail to allow 

APHIS to analyze the impacts on each 

State on an individual basis. All special 

need requests must be signed by the 

executive official or officials or by a 

plant protection official or officials of 

the State(s) making the request and must 

contain the following: 

(1) Data drawn from a scientifically 

sound detection survey, showing that 

the biological control organism, noxious 

weed, or plant pest of concern does not 

exist in the State or political subdivision 

or, if already present in the State or 

political subdivision, the distribution of 

the biological control organism, noxious 

weed, or plant pest of concern; 

(2) If the biological control organism, 

noxious weed, or plant pest is not 

present in the State or political 

subdivision, a risk analysis or other 

scientific data showing that the 

biological control organism, noxious 

weed, or plant pest could enter the State 

or political subdivision and become 

established; 

(3) Specific information showing that, 

if introduced into or allowed to spread 

within the State or political subdivision, 

the biological control organism, noxious 

weed, or plant pest would harm or 

injure the environment or agricultural 

resources in the State or political 

subdivision. The request should contain 

detailed information, including 

quantitative estimates, if available, 

about what harm or injury would result 

from the introduction or dissemination 

of the biological control organism, 

noxious weed, or plant pest in the State 

or political subdivision; 

(4) Specific information showing that 

the State or political subdivision has 

characteristics that make it particularly 

vulnerable to the biological control 

organism, noxious weed, or plant pest, 

such as unique plants, diversity of flora, 

historical concerns, or any other special 

basis for the request for additional 

restrictions or prohibitions; and 

(5) Information detailing the proposed 

additional prohibitions or restrictions 

and scientific data demonstrating that 

the proposed additional prohibitions or 

restrictions are necessary and adequate, 

and that there is no less drastic action 

that is feasible and that would be 

adequate, to prevent the introduction or 

spread of the biological control 

organism, noxious weed, or plant pest 

in the State or political subdivision. 

(b) All special need requests must be 

submitted to the Deputy Administrator 

for Plant Protection and Quarantine, 

APHIS, USDA, Jamie L. Whitten Federal 

Building, 14th Street and Independence 

Avenue, SW., Room 301–E, Washington, 

DC 20250. 

§ 301.1–3 Action on special need requests. 

(a) Upon receipt of a complete special 

need request submitted in accordance 

with § 301.1–2, APHIS will publish a 

notice in the Federal Register to inform 

the public of the special need request 

and to make the request and its 

supporting information available for 

review and comment for at least 60 

days. 

(b) Following the close of the 

comment period, APHIS will publish 

another notice announcing the 

Administrator’s decision to either grant 

or deny the special need request. The 

Administrator’s determination will be 

based upon the evaluation of the 

information submitted by the State or 

political subdivision of a State in 

support of its request and would take 

into account any comments received. 

(1) If the Administrator grants the 

special need request, the State or 

political subdivision of a State will be 

authorized to impose only the specific 

prohibitions or restrictions identified in 

the request and approved by APHIS. 

APHIS will coordinate with the State, or 

with the State on behalf of the political 

subdivision of the State, to ensure that 

the additional prohibitions or 

restrictions are in accord with the 

special need exception granted by the 

Administrator. 

(2) If the Administrator denies the 

special need request, the State or 

political subdivision of a State will be 

notified in writing of the reason for the 

denial and may submit any additional 

information the State or political 

subdivision of a State may have in order 

to request a reconsideration. 

(c) If granted, a special need exception 

will be applicable for 2 years, at the end 

of which the State or political 

subdivision of a State must submit a 

request for renewal of the exception. A 

special need renewal request must 

address the same criteria as the initial 

request submitted under § 301.1–2 and 

must show that a special need still 

exists that warrants the continuation of 

the special need exception. The renewal 

must be submitted no sooner than 6 

months and no later than 3 months prior 

to the end of the 2-year applicability 

period for the initial exception. Once a 

special need renewal request has been 

received, APHIS will follow the same 

notice and comment process outlined in 

paragraphs (a) and (b) of this section. If, 

by the end of the 2-year applicability 

period, the State or political subdivision 

of a State does not submit a special need 

renewal request, the State’s or political 

subdivision’s special need exception 

will lapse and the State or political 

subdivision of a State will have to 

reapply for the special need exception. 

(d) If the Administrator determines 

that there is a need for the withdrawal 

of a special need exception before the 

renewal date of the special need 

exception, the reasons for the 

withdrawal would be communicated to 

the State or to the political subdivision 

of the State and APHIS will publish a 

notice in the Federal Register to inform 

the public of the withdrawal of the 

special need exception and to make the 

information supporting the withdrawal 

available for review and comment for at 

least 60 days. Reasons for withdrawal of 

approval of a special need exception 

may include, but are not limited to, the 

availability of new scientific data or 

changes in APHIS regulations. 

Following the close of the comment 

period, APHIS will publish another 

notice announcing the Administrator’s 

decision to either withdraw or uphold 

the special need exception. The 

Administrator’s determination will be 


dwashington3 on PRODPC61 with RULES
63066 Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations 

1 In addition to these conforming changes 

necessary to harmonize the amendments, this 

Notice contains three non-substantive changes. 

First, section 305.20 has been changed to clarify 

that the catalog disclosure requirements in section 

305.20(a) do not apply to ceiling fans (instead, 

section 305.20(f) contains the catalog requirements 

for ceiling fans). Second, this Notice places the 

ceiling fan labeling requirements in a new section 

(305.13 Labeling for ceiling fans). Third, in the 

sample ceiling fan label in Appendix L, the airflow 

efficiency number has been corrected to match the 

airflow and electricity use numbers on that label. 2 44 USC 3501-3520. 

based upon the evaluation of the 

information submitted in support of the 

withdrawal and would take into account 

any comments received. 

(Approved by the Office of Management and 

Budget under control number 0579–0291) 

Done in Washington, DC, this 17th day of 

October 2008. 

Bruce Knight, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. E8–25291 Filed 10–22–08; 8:45 am] 

BILLING CODE 3410–34–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 305 

RIN 3084-AA74 

Appliance Labeling Rule 

AGENCY: Federal Trade Commission 

(‘‘FTC’’ or ‘‘Commission’’). 

ACTION: Final rule; correction. 

SUMMARY: The Commission is issuing 

this Notice to make technical 

corrections to the Appliance Labeling 

Rule. The corrections are necessary to 

ensure that amendatory language 

published on December 28, 2006 and 

scheduled to become effective on 

January 1, 2009 is consistent with other 

Rule amendments that have been 

codified since 2006 and are already 

effective. 

DATES: The corrections published in this 

document will become effective on 

January 1, 2009. 

ADDRESSES: Requests for copies of this 

document are available from: Public 

Reference Branch, Room 130, Federal 

Trade Commission, 600 Pennsylvania 

Avenue, NW, Washington, DC 20580. 

The complete record of this proceeding 

is also available at that address. 

Relevant portions of the proceeding, 

including this document, are available 

at http://www.ftc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Hampton Newsome, (202) 326-2889, 

Attorney, Division of Enforcement, 

Bureau of Consumer Protection, Federal 

Trade Commission, 600 Pennsylvania 

Avenue, NW, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Over the last two years, the 

Commission has issued amendments to 

its Appliance Labeling Rule (16 CFR 

Part 305) in three separate proceedings 

related to: (1) ceiling fan labels (71 FR 

78064 (Dec. 28, 2006)), (2) appliance 

label designs (72 FR 49948 (Aug. 29, 

2007)), and (3) metal halide lamp 

fixtures (73 FR 39221 (July 9, 2008)). 

The effective dates of these three sets of 

amendments differ. The label design 

amendments became effective on 

February 29, 2008 while the ceiling fan 

and metal halide amendments will both 

become effective on January 1, 2009. 

Because the publication of the ceiling 

fan amendments preceded the label 

design amendments, the amendatory 

instructions in the ceiling fan Federal 

Register Notice are not consistent with 

the existing Rule provisions. For 

example, the label design amendments 

created new section numbers and whole 

provisions that were not extant at the 

time the ceiling fan amendments were 

published. Therefore, the citations for 

the ceiling fan amendments are no 

longer accurate. To harmonize the 

various amendments, the Commission is 

consolidating the ceiling fan and metal 

halide amendments in a format 

consistent with the Rule’s current 

provisions. The corrections included in 

this Notice contain no substantive 

changes to these previously announced 

Rule amendments.1

II. Administrative Procedure Act 

The amendments published in this 

notice involve technical and minor, or 

conforming changes to the labeling 

requirements in the Rule. These 

technical amendments merely ensure 

that previously announced amendatory 

instructions are consistent with current 

Rule provisions. They contain no 

substantive changes to amendments 

previously announced by the 

Commission. Accordingly, the 

Commission finds for good cause that 

public comment for these technical, 

procedural amendments is impractical 

and unnecessary (5 U.S.C. 553(b)(A)(B) 

and (d)). 

III. Regulatory Flexibility Act 

The provisions of the Regulatory 

Flexibility Act relating to a Regulatory 

Flexibility Act analysis (5 U.S.C. 603- 

604) are not applicable to this 

proceeding because the amendments do 

not impose any new obligations on 

entities regulated by the Appliance 

Labeling Rule. These technical 

amendments merely change the format 

and citations for previously announced 

amendments. Thus, the amendments 

will not have a ‘‘significant economic 

impact on a substantial number of small 

entities.’’ 5 U.S.C. 605. The Commission 

has concluded, therefore, that a 

regulatory flexibility analysis is not 

necessary, and certifies, under Section 

605 of the Regulatory Flexibility Act (5 

U.S.C. 605(b)), that the amendments 

announced today will not have a 

significant economic impact on a 

substantial number of small entities. 

IV. Paperwork Reduction Act 

In a June 13, 1988 notice (53 FR 

22106), the Commission stated that the 

Rule contains disclosure and reporting 

requirements that constitute 

‘‘information collection requirements’’ 

as defined by 5 CFR 1320.7, the 

regulation that implements the 

Paperwork Reduction Act.2 The 

Commission noted that the Rule had 

been reviewed and approved in 1984 by 

the Office of Management and Budget 

(‘‘OMB’’) and assigned OMB Control No. 

3084-0068. OMB has reviewed the Rule 

and extended its approval for its 

recordkeeping and reporting 

requirements until May 31, 2011. The 

amendments now being adopted do not 

change the substance or frequency of the 

recordkeeping, disclosure, or reporting 

requirements and, therefore, do not 

require further OMB clearance. 

List of Subjects in 16 CFR Part 305 

Advertising, Energy conservation, 

Household appliances, Labeling, 

Reporting and recordkeeping 

requirements. 

■ For the reasons stated in the preamble, 

the Federal Trade Commission amends 

16 CFR Part 305 as amended at 71 FR 

78064, December 28, 2006 and 73 FR 

39221, July 9, 2008, as follows: 

PART 305—[AMENDED] 

■ 1. The authority citation for Part 305 

continues to read as follows: 

Authority: 42 U.S.C. 6294. 

■ 2. Section 305.2 is amended as 

follows: 

■ a. Revise paragraphs (l)(21) and (l)(22) 

and add paragraph (l)(23); and 

■ b. Revise paragraph (p). 

■ The addition and revisions read as 

follows: 

§ 305.2 Definitions. 

* * * * * 

(l) * * * 

(21) Metal halide lamp fixtures. 

(22) Ceiling fans. 

(23) Any other type of consumer 

product that the Department of Energy 


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