### Regulatory Impact Analysis and Analysis in Support of

Certification that the Rule will not have a Significant Economic Impact on a Substantial Number of Small Entities
Final Rule Importation of Plants for Planting; Establishing a Category of Plants for Planting Not Authorized for Importation Pending Pest Risk Analysis

APHIS - 2006 - 0011

U.S. Department of Agriculture Animal and Plant Health Inspection Service

June 2010i



### Summary

The final rule will amend the importation of plants for planting regulations to establish a new category of regulated articles. This category will list taxa of plants for planting whose importation is not authorized pending pest risk analysis. T his action is necessary to increase our safeguards against the risk of introduction of plant pests or pest plants (noxious weeds) that are associated with the importation of plants for planting and protect domestic agriculture and environmental resources. After conducting the initial regulatory flexibility analysis and addressing public comment s related to expected benefits and cost s of the proposed rule, APHIS has determined that this rule will not have a significant economic impact on a substantial number of small entities. Th e final rule will serve to set up the new import category and the process by which taxa will be added to an d removed from the NAPPRA lists. If a review of scientific information indicate s that a taxon of plants for planting is a quarantine pest or a host of a quarantine pest, we will then publish a notice indicating that we have determined that it is
necessary to add the taxon to the NAPPRA category. The public will be given the opportunity to comment on its addition to the NAPPRA category

. If we receive no comments that change our determination, the taxon will subsequently be added to the NAPPRA category. T his final rule will establish the criteria for listing quarantine pests and hosts of quarantine pests; the process by which plant taxa will be placed on a NAPPRA list; and the process by which plant taxa could be removed from a NAPPRA list. The expected b enefits of using the NAPPRA process to respond to risks process far outweigh any expected costs of implementing the regulation.ii

Table of Contents Summary

................................ ................................ ................................ .............................. i Introduction

................................ ................................ ................................ ......................... 1 Overview of the Action

................................ ................................ ................................ ....... 4 Potential Impact on Small Entities

................................ ................................ ...................... 71



### Introduction USDA’s Animal and Plant Health Inspection Service (APHIS) will amend Title 7, Part 319, Section 37 of the Code of Federal Regulations, by adding a new import category to the regulations that govern the importation of nursery stock, also known as plants for planting. A new section 319.37

- 2a w ill be added that lists taxa of regulated plants for planting whose importation is not authorized pending pest risk analysis. We refer t o the plants for planting that will be listed and the new regulations, themselves, using the acronym NAPPRA (“not authorized pending pest risk analysis”). Existing regulations govern ing the importation of plants for planting, found in 7 CFR 319.37 through 319.37

- 14 , restrict or prohibit the importation of certain plants and plant products into the United States to prevent the introduction of plant pests that are not already established domestically or that are established and under official control. The re gulations do not require that a pest risk analysis (PRA) be completed prior to the importation of a new taxon of plants for planting or prior to the taxon being imported from a new area, except for plants in growing media. For taxa of plants for planting whose importation is not specifically restricted or prohibited in the regulations, the only risk mitigation requirements are that the shipments enter the United States through a Federal plant inspection station, be accompanied by a phytosanitary certificat e and a permit , and be sampled and visually inspected for quarantine pests. However, the measures may not provid e an adequate level of protection against the introduction of certain pests or noxious weeds, particularly when those pests are not yet recogni zed and regulated as quarantine pests. When the plants for planting regulations were originally established, both the volume and the types of plants for planting imported differed significantly from the current import situation.2

In the past, plants for planting that were imported and the phytosanitary conditions of their importation were limited to seed or small amounts of plant material, usually 100 or fewer plants or vegetative, propagative plant parts per taxon. When originally established, the regul atory requirements for importation were created with the intent of limiting imports of such plants to the amount necessary to establish a specific species or cultivar within the United States. These imports were not intended for direct sale to domestic co nsumers; rather, the species and cultivars were first established domestically , subsequent ly propagated, and then sold to U.S. consumers. Today, APHIS no longer limits the amount of plants for planting imported to those necessary to establish a species or cultivar in the United States. Consequently, U.S. imports of plants for planting have grown considerably . In fiscal year (FY) 1999, over 700 million plants were imported, with a total of 4.2 million plants and 33 tons of seeds inspected at the port of e ntry at USDA

- APHIS plant inspection stations or by U.S. Customs and Border Protection

. 1 Comparatively, during fiscal year FY 2006 alone , over 1.3 b illion plants and 1,543 tons of seeds were imported and inspected at the port of entry at USDA

- APHIS plant i nspection stations or by
U.S. Customs and Border Protection

. 2 The Economic Research Service (ERS) forecasts U.S. horticultural imports, which include greenhouse and nursery products, to grow by about 3.7 percent annually through 201 9

. 3
The dramatic inc rease in plants for planting imports, both in volume and type, necessitates a higher level of protection against the introduction of plant pests and noxious weeds.

1 APHIS Plant Protection and Quarantine (PPQ), “The Animal and Plant Health Inspection Service’s Plant Inspection Stations Factsheet,” December 2002. 2 APHIS Plant Prot ection and Quarantine (PPQ), “The Animal and Plant Health Inspection Service’s Plant Inspection Stations Factsheet,” January 2007. 3 USDA

- ERS. Agricultural Baseline Projections: U.S. Crops, 2010

- 2019. Washington, D.C.: Economic Research Service, Feb. 20 10.3

A comparison of our current import regulations for plants for planting to the requirements for fruit and vegetable imports reveals the inadequacy of the plant import requirements. The risk of pest introduction and establishment posed by propagative material is greater than that posed by products destined for consumption (i.e. , fruits and veget ables) . Yet, while the Fruits and Vegetables Quarantine (7 CFR 319.56

- 1 through 319.56

- 50 ) is based on a “prohibited unless found safe” approach, regulation of plants for planting has been largely based on an “enterable unless found unsafe” approach. 4 This approach essentially assume s there is no risk associated with the unknown. APHIS recognizes t his to be a very precarious situation , considering that introduced plants for planting may harbor quarantine pests for months or years. Also, the destinatio ns of imported plants for planting, such as nurseries, orchards, gardens, and greenhouses, are favorable environments for plant growth and pest development in general, thus increasing the risk that a plant pest or pest plant could become established. Addi tionally, in the event that imported plants for planting arrive at these destinations carrying pests or pathogens of

concern, it is likely that there are other host materials for these quarantine pests abundant in those environments. This rule will amend the current regulations so as to provide a level of phytosanitary protection commensurate with the risks posed by the importation of plants for planting.
B enefits and costs of the rule are examined in accordance with Executive Order 12866 , and the benef

its are expected to exceed the costs overall . Possible impacts on small entities are considered in accordance with the Regulatory Flexibility Act. After conducting the initial regulatory flexibility analysis and addressing public comments related to the benefits and cost of the proposed rule, APHIS has determined that this rule will not have a significant economic

4 National Plant Board, 1999 Report “Safeguarding American Plant Resources.”4

impact on a substantial number of small entities. Th e final rule will serve to set up the new import category, and the process by which taxa w ill be added to and removed from the NAPPRA lists. If a review of scientific information indicate s that a taxon of plants for planting is a quarantine pest or a host of a quarantine pest, we will then publish a notice indicating that we have determined it is necessary to add the taxon to the NAPPRA category. The public will be given the opportunity to comment on its addition to the NAPPRA regulations. If we receive no comments that change our determination, th e taxon will subsequently be added to the NAPPRA category. This final rule will establish the criteria for determining that taxa of plants for planting

are quarantine pests and hosts of quarantine pests; the process by which plant taxa will be placed

on a NAPPRA list, including a review of the types of scientific evidence that will be utilized in doing so; and the process by which plant taxa could be removed from a NAPPRA list. The final rule will amend Title 7, Part 319 of the Code of Federal Regulations by establishing a new category of plants for planting not authorized for importation pending pest risk analysis. In accordance with the Plant Protection Act (7 U.S.C. 7701

- 7772), the Secretary of Agriculture is authorized to undertake such actions as may be necessary to prevent the introduction and spread of plant pests and noxious weeds within the United States. The Secretary has delegated this responsibility to the Administrator of the Animal and Plant Health Inspection Service. 

### Overview of the Action

A PHIS has concluded that e stablishing the NAPPRA category will serve to better protect U.S. agriculture and the environment from the introduction of plant pests and noxious weeds into the United States by allowing APHIS to take timely action to prevent thei r importation. Strengthening our safeguards against these quarantine pests is expected to result in far

- reaching5

economic and environmental benefits. In 1999, the National Plant Board reported that introduced invasive plant pests cost about $41 billion a nnually in lost production and in prevention and control expenses. A subsequent study estimate d that noxious weeds alone cause an overall reduction in U.S. crop yield of 12 percent, which translate d into a $ 33 billion loss annually. 5
Introduced plant pests cause significant control expenses in addition to lost production. In 2005, it was estimated that approximately $ 4 billion was spent each year on herbicides applied to U.S. crops to co ntrol non - indigenous weeds , a 25 percent increase in five y ears . 6 Pimentel et al . (200 5 ) further estimate d that non

- indigenous plant pathogens cause $21 billion in U.S. crop losses each year, and that growers spend approximately $ 720 million annually on fungicides to combat these pathogens. Crop losses to these pests and weeds and related control costs contribute to lower levels of domestic production and, in general, higher prices for consumers. As the risk of plant pest introduction s increases annually, so does the need to proac tively address the se risks. For instance, in 2001 a plant pest called the citrus longhorned beetle (CLHB) was imported in a shipment of bonsai maple trees and detected in a Washington State nursery. The resulting response involved quarantining an area having a one

- half mile radius around the infestation site, destroying about 1,000 trees, injecting surrounding trees with an insecticide to prevent the infestation’s spread, and surveying of more than 20,000 trees in the quarantined area. As a result of these efforts, no new C LHB cases were reported. 7

5 Pimentel, D.; R. Zuniga and D., Morrison (2005). "Update on the environmental and economic costs associated with alien

- invasive species in the United States.". Ecological Economics 52 : 273

– 288. 6 Pimentel, D., L. Lach, R. Zuniga, and D. Morrison. “Environmental and Economic Costs of Nonindigenous Species in the United States.” BioScience 50.1 (2000): 53

- 65. 7 WSDA “Citrus Longhorned Beetle Eradication Project.” Washingto n State Department of Agriculture < http://www.agr.wa.gov >.6

Washington State officials responded aggressively to the CLHB introduction in light of the devastation caused on the East Coast by a similar introduced pest, the Asian longhorned beetle (ALB), which is believed to have been intr oduced via the importation of untreated wood packaging material. The fight to eradicate ALB has persisted for more than 1 3 years, and has involved the removal of more than 30,000 beetle

- infested trees and the quarantining of over 130 square miles, at a to tal cost of more than $ 533 million in public funds including APHIS and State obligations. APHIS obligations from 1997 to 20 10 total $ 388 million, including more than $ 1 67 million in Commodity Credit Corporation (CCC) transfers. APHIS obligations include a budget request for 20 11 of nearly $ 49.2 million. State obligations for Massachusetts, New York, New Jersey, and Illinois during the same time period will amount to nearly $ 95 million with budget requests of $ 13.5 million more for the 20 11 fiscal year. We assume that the cost of eradicating CHLB, if it were introduced, would be similar to the cost of eradicating ALB. As another example, in February 2003 the plant pathogen Ralstonia solanacearum race 3 biovar 2 was detected in geraniums in four greenhouses in Illinois, Indiana, Michigan, and Wisconsin. This plant pathogen was traced back to infected geraniums imported from Kenya. The resulting response cost growers and regulators an estimated $7 million and involved the destruction of over 2 million plants. 8 Th is pathogen and CHLB are just two examples of the type of quarantine pest introduction s that this final r ule will help to prevent. Another benefit of the final rule will be streamlining of the APHIS

- P PQ process for addressing risk s associated with the introduction of quarantine pests. APHIS typically provide s notice of our intent to designate plants for planting as prohibited articles, or place additional restrictions on their importation, through pro posed rules . A pest risk analysis (PRA) is usually

8 USDA

- ARS. Research Project: “ Biology and Pathogenesis of Ralstonia Solana c earum Race 3 on Geraniums ” 2004 Annual Report. Beltsville, MD: Agricultural Research Service.7

conducted to support such a designation. If an emergency situation arises, APHIS can prohibit the importation of a plant taxon through a Federal order, which is later superseded by an interim rule in which we request comments from the public. U nder the NAPPRA process , we will stop the importatio n of a plant taxon that has been scientifically shown to be a quarantine pest or a host of a quarantine pest. This process will provide an added measure of protection to U.S. agricultural and environmental resources vulnerable to these pests. APHIS will be able to more efficiently respond to immediate risks associated with the importation of plants for planting , and will be able to solicit comments from the public earlier in the process

. As a result of implementation, w e anticipate that APHIS will experi ence an increase in requests for PRAs associated with plant taxa listed in the NAPPRA category. The process of evaluating the requests, including reviewing information from the exporting country’s national plant protection organization ( NPPO ) and initiati ng the PRA and , if necessary, the rulemaking process, are costs that will be efficiently absorbed by the Agency. The expected benefits of this process far outweigh any expected costs of implementing the regulation. 

### Potential Impact on Small Entities

This analysis provides the basis, as required by the Regulatory Flexibility Act, for certification by the APHIS Administrator that the rule will not have a significant economic impact on a substantial number of small entities. Entities and individuals that imp ort plants for planting may be affected by the NAPPRA process. Such entities may include farm supplies merchant wholesalers (North American Industry Classification System [NAICS] code 424910); flower, nursery stock, and florists’ supplies merchant wholesa lers (NAICS code 424930); and nursery and garden centers (NAICS code 444220). Comparing statistics from the 200 7 Economic Census with the Small Business8

Administration’s size standards, we have determined that the majority of these entities are considered small by SBA standards. The NAPPRA process may also a ffect plant societies. Membership fees associated with these societies allow members to engage in the exchange of seed or plant material. This rule will establish the NAPPRA regulatory category and pr ocess, including a requirement for persons or entities requesting the removal of a taxon from the NAPPRA lists to submit to USDA specific information from the exporting nation’s NPPO. R equests to remove a taxon from the NAPPRA category , made in accordance with § 319.5 , would require the submission of information that is necessary for APHIS to conduct a PRA. The economic costs to small entities would likely include, but are not limited to, time spent learning the process of application, seeking advice, obt aining required information from exporting country’s NPPO, preparing and sending off request, follow

- up, and maintaining records. It is estimated that t he collection of this information would take approximately 5.6 hours of business operation time, on

ave rage . However, as it is optional to request removal of a taxon from the NAPPRA category, we do not anticipate that a small entity would make such a request unless the benefits outweighed the costs, given that small entities would continue to have most tax a in the world available for importation subject to the general restrictions in the plants for planting regulations. The rule will not establish any broad restrictions or prohibitions but will only target specific taxa; most taxa of plants for planting wil l continue to be allowed to be imported subject to the current general restrictions. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.