31172 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

1To view the proposed rule, its supporting 

documentation, and the comments we received, go 

to http://www.regulations.gov/fdmspublic/ 

component/main?main=DocketDetail&d=APHIS2006-0011. 

2The Glossary of Phytosanitary Terms is 

International Standard for Phytosanitary Measures 

(ISPM) Number 5. To view this and other ISPMs on 

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

the ‘‘Adopted Standards’’ link under the ‘‘Core 

activities’’ heading. 

3We use the term ‘‘taxon’’ (plural: taxa) to refer 

to any grouping within botanical nomenclature, 

such as family, genus, species, or cultivar. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS–2006–0011] 

RIN 0579–AC03 

Importation of Plants for Planting; 

Establishing a Category of Plants for 

Planting Not Authorized for 

Importation Pending Pest Risk 

Analysis 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the 

regulations to establish a new category 

of regulated articles in the regulations 

governing the importation of nursery 

stock, also known as plants for planting. 

This category will list taxa of plants for 

planting whose importation is not 

authorized pending pest risk analysis. If 

scientific evidence indicates that a 

taxon of plants for planting is a 

quarantine pest or a host of a quarantine 

pest, we will publish a notice that will 

announce our determination that the 

taxon is a quarantine pest or a host of 

a quarantine pest, cite the scientific 

evidence we considered in making this 

determination, and give the public an 

opportunity to comment on our 

determination. If we receive no 

comments that change our 

determination, the taxon will 

subsequently be added to the new 

category. We will allow any person to 

petition for a pest risk analysis to be 

conducted to consider whether to 

remove a taxon that has been added to 

the new category. After the pest risk 

analysis is completed, we will remove 

the taxon from the category and allow 

its importation subject to general 

requirements, allow its importation 

subject to specific restrictions, or 

prohibit its importation. We will 

consider applications for permits to 

import small quantities of germplasm 

from taxa whose importation is not 

authorized pending pest risk analysis, 

for experimental or scientific purposes 

under controlled conditions. This new 

category will allow us to take prompt 

action on evidence that the importation 

of a taxon of plants for planting poses 

a risk while continuing to allow for 

public participation in the process. 

DATES: Effective Date: June 27, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Dr. Arnold Tschanz, Senior Plant 

Pathologist, Plants for Planting Policy, 

Risk Management and Plants for 

Planting Policy, RPM, PPQ, APHIS, 

4700 River Road Unit 133, Riverdale, 

MD 20737–1236; (301) 734–0627. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the Plant Protection Act (PPA) 

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

Agriculture is authorized to take such 

actions as may be necessary to prevent 

the introduction and spread of plant 

pests and noxious weeds within the 

United States. The Secretary has 

delegated this responsibility to the 

Administrator of the Animal and Plant 

Health Inspection Service (APHIS). 

The regulations in 7 CFR part 319 

prohibit or restrict the importation of 

certain plants and plant products into 

the United States to prevent the 

introduction of plant pests that are not 

already established in the United States 

or plant pests that may be established 

but are under official control to 

eradicate or contain them within the 

United States. The regulations in 

‘‘Subpart—Nursery Stock, Plants, Roots, 

Bulbs, Seeds, and Other Plant 

Products,’’ §§ 319.37 through 319.37–14 

(referred to below as the regulations), 

restrict, among other things, the 

importation of living plants, plant parts, 

seeds, and plant cuttings for planting or 

propagation. These regulations are 

intended to ensure that imported 

nursery stock does not serve as a host 

for plant pests, such as insects or 

pathogens, that can cause damage to 

U.S. agricultural and environmental 

resources. 

The regulations in 7 CFR part 360, 

‘‘Noxious Weed Regulations,’’ contain 

prohibitions and restrictions on the 

movement of noxious weeds or plant 

products listed in that part into or 

through the United States and interstate. 

Plants are designated as noxious weeds 

when the plants themselves can cause 

damage to U.S. agricultural and 

environmental resources, meaning they 

can only be moved under a permit 

containing conditions to prevent their 

introduction into the environment. The 

importation of some plants is subject to 

both the nursery stock regulations and 

the noxious weed regulations. 

On July 23, 2009, we published in the 

Federal Register (74 FR 36403–36414, 

Docket No. APHIS–2006–0011) a 

proposal 1 to amend the nursery stock 

regulations. We proposed to change the 

nursery stock regulations to refer 

instead to ‘‘plants for planting,’’ a term 

that is consistent with the International 

Plant Protection Convention’s (IPPC) 

Glossary of Phytosanitary Terms.2 (In 

this document, we will use the term 

‘‘plants for planting’’ to refer to all the 

articles subject to what have been called 

the nursery stock regulations, as we did 

in the proposal.) 

We proposed to create a new category 

of plants for planting whose importation 

is not authorized pending the 

completion of a pest risk analysis. We 

referred to the category as the ‘‘not 

authorized pending pest risk analysis’’ 

(NAPPRA) category. We proposed that 

the NAPPRA category would include 

two lists: A list of taxa that we have 

judged, on the basis of scientific 

evidence, to be potential quarantine pest 

plants, and therefore potential noxious 

weeds; and a list of taxa that we have 

judged, on the basis of scientific 

evidence, to be potential hosts of 

quarantine pests.3 We proposed to 

define a quarantine pest as a plant pest 

or noxious weed that is of potential 

economic importance to the United 

States and not yet present in the United 

States, or present but not widely 

distributed and being officially 

controlled. 

We proposed to add taxa of plants for 

planting to the NAPPRA category based 

on scientific evidence that indicates that 

their importation poses a risk of 

introducing a quarantine pest into the 

United States, rather than on a 

comprehensive pest risk analysis (PRA). 

Additionally, we proposed to establish 

the NAPPRA lists on a Web site and 

notify the public of our determination 

that taxa of plants for planting are 

potential quarantine pests or potential 

hosts of quarantine pests, and thus 

should be added to the NAPPRA lists, 

by publishing notices in the Federal 

Register. 

Finally, we proposed to allow any 

person to request that APHIS conduct a 

PRA on any plant taxon listed in the 

NAPPRA category. We proposed that, 

after completing the PRA, we would 

initiate rulemaking either to allow the 

importation of the taxon subject to the 

restrictions described in the risk 

management section of the PRA or, if 

the risk associated with the importation 

of the taxon cannot be feasibly 

mitigated, to prohibit its importation. 

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Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 31173 

4 Keller R.P., Lodge, D.M., and Finnoff, D.C. 2007. 

Risk assessment for invasive species produces net 

bioeconomic benefits. Proceedings of the National 

Academy of Sciences 104:203–207. 

5The Safeguarding Review is available on the 

Web at http://nationalplantboard.org/policy/ 

safeguard.html; the peer review report is available 

at http://nationalplantboard.org/docs/ 

PR%20Report%207-17-06.pdf. 

6Rosenthal, D.M., Ramakrishnan, A.P., and 

Cruzan, M.B. 2008. Evidence for multiple sources 

of invasion and intraspecific hybridization in 

Brachypodium sylvaticum (Hudson) Beauv. in 

North America. Molecular Ecology 17:4657–4669. 

We also proposed to make several 

other changes to definitions in the 

plants for planting regulations and to 

expand the scope of the plants for 

planting regulations to include 

nonvascular green plants. 

We solicited comments concerning 

our proposal for 90 days ending October 

21, 2009. We received 256 comments by 

that date. They were from producers, 

researchers, importers, conservation 

societies, environmental advocacy 

groups, representatives of State and 

foreign governments, other Federal 

agencies, and the general public. 

Based on these comments, we are 

making the following changes to the 

proposal: 

• In order to make the regulations 

more specific and to avoid confusion, 

rather than using the terms ‘‘potential 

quarantine pest’’ and ‘‘potential host of 

a quarantine pest,’’ we are simply 

referring to taxa as quarantine pests or 

hosts of a quarantine pest. 

• We are clarifying that seed of taxa 

of plants for planting whose importation 

is not authorized pending pest risk 

analysis is not eligible to be imported 

without a phytosanitary certificate 

under the small lots of seed program in 

§ 319.37–4(d). 

• We are not including the proposed 

provision under which we would have 

specified a proposed effective date in 

the notices announcing our 

determination that a taxon should be 

added to the NAPPRA category, as we 

will enforce any restrictions that must 

be implemented immediately through 

Federal import quarantine orders. 

• We are requiring requests to remove 

a taxon from the NAPPRA lists to be 

made in accordance with § 319.5, which 

requires submission of information 

regarding the taxon by a foreign national 

plant protection organizations (NPPO), 

in order to ensure that we have enough 

information to conduct a PRA. 

• We are providing for the removal of 

a taxon from the NAPPRA list if the 

scientific evidence we used as a basis 

for adding the taxon to the lists is 

shown to be in clear error. We are also 

making some minor editorial changes, 

which are discussed below. 

The comments are discussed below by 

topic. 

Support for the Proposed Rule 

Two hundred and four of the 

commenters supported the proposed 

rule. They cited various reasons for their 

support. Many spoke of the damage that 

certain plants cause in the natural 

environment, giving dozens of examples 

including mile-a-minute weed, purple 

loosestrife, yellow starthistle, leafy 

spurge, Japanese stilt grass, wavyleaf 

basketgrass, water hyacinth, and spotted 

knapweed. 

The commenters stated that many of 

these plants, as well as many other 

harmful plants, have been introduced 

through the nursery trade, meaning that 

they would have been subject to 

evaluation and, potentially, prevented 

from being imported under NAPPRA. 

One commenter noted that the nursery 

trade naturally seeks to sell plants that 

grow vigorously, resist insect pests, and 

propagate easily, traits that are often 

associated with plants that harm 

agricultural and environmental 

resources. 

Other commenters supported using 

the NAPPRA category to address the 

risk associated with plants for planting 

that are hosts of quarantine pests, citing 

previous introductions of harmful pests 

through the importation of plants for 

planting. These commenters gave many 

examples as well, including emerald ash 

borer, chestnut blight, laurel wilt, Dutch 

elm disease, pine pitch canker, 

dogwood anthracnose, Port Orford cedar 

root disease, white pine blister rust, and 

sudden oak death (Phytophthora 

ramorum). 

Many commenters who supported the 

rule cited the costs that State and local 

governments and communities must 

bear in controlling quarantine pest 

plants and plant pests; in their view, the 

most cost-effective way to avoid 

additional control costs in the future is 

to prevent the importation of damaging 

quarantine pest plants and plant pests, 

and they supported the NAPPRA 

category as a means by which to do that. 

One commenter cited a study showing 

that the Australian weed risk 

assessment (WRA) system provides 

economic benefits 4 and stated that, 

while the proposed rule did not go as far 

as the Australian screening system, the 

regulatory mechanisms are similar 

enough that creating a NAPPRA list will 

generate economic benefits to the 

United States, in addition to significant 

environmental and agricultural benefits. 

Some commenters stated that 

landscaping efforts should concentrate 

on using native species, making the 

importation of plants for planting 

unnecessary. 

Some of the commenters noted that 

preventing the importation of certain 

taxa of plants for planting might lead to 

restrictions on taxa that ultimately 

prove to be safe, or that can be imported 

safely under certain conditions, but 

stated that the risk posed by importation 

of taxa of plants for planting that are 

quarantine pests or hosts of quarantine 

pests should be addressed immediately 

for the good of the wider environment. 

One commenter stated that maintaining 

strict importation standards while not 

impeding trade is a delicate balance, 

and it appears that the NAPPRA 

category can maintain that balance 

when applied judiciously. 

One commenter noted that 

strengthening the plants for planting 

regulations was recommended by both 

the National Plant Board’s 1999 

Safeguarding Review and 2006 Peer 

Review Reports.5

Comments Supporting Broad 

Prohibitions or Restrictions on the 

Importation of Plants for Planting 

Under the regulations, most plants for 

planting may currently be imported into 

the United States if they are 

accompanied by a phytosanitary 

certificate and a permit and if they are 

inspected at a U.S. Department of 

Agriculture (USDA) plant inspection 

station listed in § 319.37–14. 

Responding to the NAPPRA proposal, 

some commenters urged us to impose 

broad prohibitions or restrictions on the 

importation of plants for planting. 

Five commenters recommended that 

we prohibit the importation of plants 

that have not previously been imported 

until those plants are tested rigorously 

and found to pose no ecological threat 

to existing species. One of these 

commenters stated that, given the level 

of uncertainty about risks that new 

organisms pose and the unpleasant 

surprises from species thought to be 

benign in the past, this should result in 

effectively blocking importation of all 

new plant species. Nothing can be 

guaranteed to be safe, this commenter 

stated, so it should be banned. This 

commenter also recommended that 

testing to prove safety be paid for by 

industry, rather than the U.S. 

Government. 

Another of these commenters echoed 

the point that new organisms pose an 

uncertain risk, and urged us to prohibit 

the importation of harmful species that 

are already present in the United States 

until they can be tested and found to be 

safe. This commenter stated that a 

recent study 6 has shown that genotypes 

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31174 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

7Pysek, P., Krivanek, M., and Jarosik, V. 2009. 

Planting intensity, residence time and species traits 

determine invasion success of alien woody species. 

Ecology 90:2734–2744. 

8Palm, M.E. 2001. Systmatics and impact of 

invasive fungi on agriculture in the United States. 

BioScience 51(2):141–147. 

9Wingfield et al. 2001. Worldwide movement of 

exotic forest fungi, especially in the tropics and the 

southern hemisphere. BioScience 51:134–140. 

10The ANPR, as well as the comments we 

received on the ANPR, can be viewed on 

Regulations.gov at http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2004-0024. 

The ANPR contains a detailed discussion of the 

from different regions can hybridize, 

forming plants of great vigor that are 

even more difficult to control. 

One commenter recommended that 

we prohibit the importation of all plants 

that have not previously been imported 

until a PRA has been completed to 

determine what level of risk the plants 

pose and what means may be available 

to mitigate that risk. 

One commenter recommended that 

we add all imported plants for planting 

to the NAPPRA category and only allow 

the importation of plants for planting if 

they were produced under conditions 

designed to prevent their infestation by 

quarantine pests (clean stock programs, 

growth from tissue culture or seed, preor post-entry quarantine, etc.). 

Three commenters recommended 

prohibiting all importation of plants for 

planting. One commenter cited a recent 

research paper 7 that examines the 

factors that result in the escape of plants 

from their original plantings and 

concludes that the single most 

important factor is propagule pressure. 

In other words, the longer a taxon has 

been held in one place and the more 

plants there are, the more likely it is to 

escape cultivation. Once taxa escape 

cultivation, some proportion of them are 

likely to be noxious weeds. The 

commenter concluded that we cannot 

make a determination that it is safe to 

import a taxon, as no taxon is safe. 

One commenter stated that all 

importation of plants for planting 

should be prohibited because some 

pests associated with plants for planting 

may have no natural enemies. This 

commenter also stated that local plants 

are where they are due to natural 

selection, and interfering with this 

process by introducing new plants may 

harm the environment. 

Another commenter stated that it is 

not possible to accurately assess the 

risks of introducing new pathogens on 

imported plants. The commenter cited 

three reasons for this belief: 

• Native plant diseases are poorly 

known in most regions of the world, and 

many disease-causing agents have very 

minor effects on their native hosts. 

Thus, the knowledge needed to assess 

risk by plant species or region is not 

available. 

• Quarantine inspections can miss 

the presence of a pathogen that 

colonizes a plant as an endophyte (a 

plant pathogen that is asymptomatic for 

at least part of its life), but when the 

same pathogen encounters naive hosts 

or new climatic conditions the effects 

can be devastating. The commenter 

cited a research paper demonstrating 

this,8 and another providing conifer 

canker and needle diseases as 

examples.9 Thus, the commenter stated, 

even careful screening of imported 

plants is unlikely to prevent pathogen 

introductions. 

• Plant pathogens are often 

complexes of closely related cryptic 

species or strains. This means that 

basing a determination of risk on the 

knowledge that a particular pathogen is 

already present in the United States is 

often erroneous, because pathogens 

known by the same name are often 

different. The commenter cited the 

‘‘aggressive strain’’ of Dutch elm 

disease, which eventually was 

recognized as a separate species, as an 

example. Thus, the commenter stated, 

we cannot assume we will know the 

behavior of any pathogen once it is 

released into a new environment. 

The commenter allowed that it may 

be possible to safely move small 

amounts of tissue-cultured plants that 

have been tested for the presence of 

endophytic organisms (i.e., organisms 

that live at least part of their lives 

within plants without causing apparent 

disease), but stated that all other forms 

of plant movement present unacceptable 

risk. 

A few commenters specifically 

disagreed with the comments calling for 

broad prohibitions and restrictions on 

the importation of plants for planting; 

these commenters instead expressed 

support for the approach in the 

proposed rule. Two of the commenters 

opposed automatically adding all taxa 

not already established in the United 

States to the NAPPRA category. Two 

stated that the benefits from importing 

plants for planting can outweigh the risk 

of unwanted pests as long as programs 

are in place to prevent pest 

introduction; that the majority of all 

plants for planting, including seeds, 

cuttings, bare roots, and bulbs, had their 

origins as imported materials brought 

into the United States each growing 

season; and that each year, hundreds of 

millions of propagules are safely 

imported into the United States to 

support the demands of the U.S. public 

for decorative planting materials, 

without harmful impact on the U.S. 

environment. 

Another commenter stated that the 

NAPPRA concept, if applied with care 

and discretion, strikes a balance among 

the competing requests to impose broad 

restrictions on the importation of plants 

for planting and to allow the 

importation of plants for planting 

subject only to the existing general 

restrictions. 

We are making no changes to the 

proposed rule in response to the 

comments requesting that we impose 

broad prohibitions and restrictions on 

the importation of plants for planting, 

beyond the general requirements in the 

current regulations. The NAPPRA 

category is designed to allow us to 

address the risk associated with plants 

for planting on a taxon-by-taxon basis; 

adding broad prohibitions or restrictions 

to the regulations would be beyond the 

scope of the proposed rule. 

We agree that there is uncertainty 

about the risk associated with any 

imported plants for planting when those 

plants have not been thoroughly 

studied. Our process for placing 

restrictions on the importation of a 

taxon of plants for planting has typically 

involved the preparation of a 

comprehensive PRA. This approach 

required us to evaluate the uncertainty 

regarding all aspects of the risk 

associated with the importation of the 

taxon before any action could be taken. 

The NAPPRA category that we are 

adding to the plants for planting 

regulations in this final rule gives us a 

streamlined, transparent means to 

respond to new scientific evidence 

indicating that a taxon of plants for 

planting is a quarantine pest or a host 

of a quarantine pest, thus directly 

addressing risk while giving us the 

necessary time to evaluate uncertainty. 

We will make every effort to respond to 

scientific evidence as it becomes 

available. 

It should be noted that the NAPPRA 

category is not the final step we plan to 

take to ensure that the regulations 

provide an appropriate level of 

protection against the risk associated 

with imported plants for planting. 

Rather, the NAPPRA category is part of 

an ongoing effort to revise the plants for 

planting regulations and to change the 

way we respond to risks. As noted in 

the proposed rule, establishing the 

NAPPRA category is just one of the 

changes discussed in an advanced 

notice of proposed rulemaking (ANPR) 

published in the Federal Register on 

December 10, 2004 (69 FR 71736–71744, 

Docket No. 03–069–1).10 We appreciate 

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Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 31175 

history of the nursery stock regulations that is 

helpful for understanding their original intent and 

current state. 

the issues that the commenters raised 

and will keep them in mind as we 

consider future rulemaking. For 

example, the issues cited by one 

commenter regarding the lack of 

information that we would need to 

assess risk by plant species or region 

highlight the need to gather more and 

better data regarding pests that could 

potentially be associated with plants for 

planting. Once we gather such data, of 

course, the data could be used to add 

taxa to the NAPPRA category. The 

NAPPRA category will also allow us to 

respond quickly to any new information 

that allows us to better predict which 

taxa of plants for planting can damage 

U.S. agricultural and environmental 

resources. 

Although we do not agree with the 

recommendation that we add all taxa of 

plants for planting to the NAPPRA 

category, we agree with the commenter 

who stated that plants for planting that 

are hosts of quarantine pests could be 

allowed to be imported if they are 

produced under standard conditions 

designed to prevent their infestation by 

quarantine pests, such as pest-free 

growth in tissue culture. We are 

developing a proposed rule that would 

provide for various measures to help 

facilitate the importation of taxa on the 

NAPPRA lists or the lists of prohibited 

articles in § 319.37–2. This effort is 

discussed in more detail later in this 

document under the heading ‘‘RiskMitigating Production Practices.’’ 

One commenter asked how we will 

address uncertainty. Although the 

proposed rule indicated that the 

decision to restrict the importation of 

taxa of plants for planting will be made 

on the basis of scientific evidence 

indicating that the importation of the 

taxa poses a risk, the commenter stated 

that, often, that there is insufficient 

scientific evidence to make a conclusion 

as to the level of risk posed by a 

particular plant, a particular plant pest, 

or origin in a particular country. The 

commenter asked whether a lack of 

available scientific evidence will be a 

factor for adding plant taxa to the 

NAPPRA list. 

One commenter stated generally that 

NAPPRA should address the risk of new 

or little-known insects and pathogens, 

as scientific data is not always available, 

especially in new environments. 

Along the same lines, another 

commenter stated that, for many 

quarantine pests, there will not be 

sufficient scientific data to predict their 

impact after introduction to the United 

States. In fact, the commenter stated, 

many quarantine pests are unknown to 

science until they become pests in a 

new environment. The commenter 

stated that it is important that USDA 

does not underestimate risk when 

evaluating candidate taxa to appear on 

the NAPPRA list as quarantine pests or 

hosts of quarantine pests, as there is 

often no way of determining the damage 

a pest will incur to a new ecosystem 

before the introduction occurs. 

As stated earlier, we will only add a 

taxon to the NAPPRA category if there 

is scientific evidence indicating that the 

taxon is a quarantine pest or a host of 

a quarantine pest. Adding taxa to the 

NAPPRA category for which we lack 

scientific evidence, based on 

uncertainty, would result in the 

effective imposition of broad restrictions 

on the importation of all plants that are 

not well-known. As discussed earlier, 

our goal in establishing the NAPPRA 

category is to provide a process for 

imposing restrictions that directly 

address the risk associated with specific 

taxa of plants for planting, based on 

scientific evidence. 

General Opposition to the Proposed 

Rule 

Several commenters expressed 

general opposition to the proposed rule 

on the basis that it would impose 

additional restrictions that might not be 

justified on the importation of plants for 

planting. Many commenters 

characterized the proposed NAPPRA 

category as a prohibition on the 

importation of plants for planting, with 

exceptions only for plants that were 

assessed and determined to be safe. One 

commenter expressed concern that the 

ultimate goal of our regulatory efforts 

was to prohibit the importation of all 

plants for planting unless the plants 

have been screened and found to be 

safe. 

Some commenters raised specific 

concerns with respect to the 

implications of a broad prohibition on 

the importation of plants for planting. 

One commenter stated that invasive 

plants have many ways of arriving in 

the United States and that few of them 

can be documented as ornamental 

species that were introduced through 

horticulture. Two commenters stated 

that any slowing or complication of the 

process of importation of seeds and 

plant material only encourages the 

illegal and undocumented shipping of 

that material. One commenter stated 

that a broad prohibition on plants for 

planting would affect plants that are 

only weeds in certain situations and are 

clearly valuable in others, such as many 

food crops. One commenter stated that 

the costs associated with testing every 

taxon of plants for planting to determine 

whether each is safe would be 

prohibitive. One commenter stated that 

no specific plants were cited in the 

proposed rule as being invasive or as 

vectors of pests. 

Some commenters opposed the 

proposed NAPPRA category on the 

grounds that it would hamper the 

conservation of plant material. One 

commenter stated that conservation of 

plant material is an extremely timesensitive process, and any slowing of 

the process could result in the loss of 

important germplasm or even species. 

The commenter stated that this would 

be absolutely fatal for material with 

short viability or for emergency 

conservation measures. One commenter 

stated that seeds were essential for 

preservation of biodiversity in 

agricultural systems; another suggested 

that we should continue to allow the 

importation of organic seed and other 

quality seed. One commenter stated that 

some species may not be able to survive 

outside greenhouse conditions, meaning 

there would be no need to prohibit their 

importation into the United States. 

As one of the commenters noted, we 

are not imposing any additional 

restrictions on specific taxa of plants for 

planting in this final rule. Rather, this 

final rule provides a process by which 

we can impose restrictions on specific 

taxa. When we determine that a taxon 

of plants for planting is a quarantine 

pest or a host of a quarantine pest, we 

will publish a notice in the Federal 

Register to inform the public of our 

determination and make available a data 

sheet that details the scientific evidence 

that we used in making the 

determination. At that point, any 

interested party will have the 

opportunity to comment on the 

proposed addition of the taxon to one of 

the NAPPRA lists, supporting or 

opposing the addition. We will 

particularly welcome comments on the 

scientific evidence supporting our 

determination, which will be detailed in 

the data sheet accompanying the notice. 

Although one commenter stated that 

few quarantine pest plants had been 

introduced through the horticultural 

trade, several commenters who 

supported the proposed rule provided 

examples of ornamental species 

imported for horticulture that had 

become quarantine pest plants. In any 

case, as discussed, we are not imposing 

broad prohibitions or restrictions on 

ornamental species imported for 

horticulture, or on any other taxa 

imported for any other use. 

Because only specific taxa of plants 

for planting will be added to the 

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31176 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

NAPPRA lists, we do not expect that 

this final rule will result in a large 

increase in illegal importation of plants 

for planting. We have existing 

inspection, investigation, and 

enforcement processes that work to 

prevent the importation of plants for 

planting whose importation is 

prohibited in § 319.37–2. We will use 

those processes to ensure that NAPPRA 

taxa are not illegally imported in the 

same way that we currently do for taxa 

whose importation is prohibited. We are 

also providing for plants for planting 

listed as NAPPRA to be imported for 

experimental or scientific purposes 

under controlled conditions, so 

scientific research can be conducted on 

them. 

Conservation of plant material will 

continue as it has under the current 

regulations, unless a taxon of the plant 

material in question is determined to be 

a quarantine pest or a host of a 

quarantine pest and the taxon is 

subsequently added to one of the 

NAPPRA lists. As one commenter 

noted, a taxon requiring conservation is 

unlikely to be added to the NAPPRA 

lists as a quarantine pest, since any 

plant that has difficulty surviving in 

field conditions is likely incapable of 

reproducing enough to cause potentially 

economically important damage to 

agricultural or environmental resources. 

For that reason, a taxon that could not 

survive outside a greenhouse would also 

be unlikely to be added to the NAPPRA 

lists. 

With respect to the concerns about 

seed, we note that the NAPPRA list of 

taxa that are hosts of quarantine pests 

allows the importation of seed unless 

we specify that seed is regulated. We 

would only regulate the seed of hosts of 

a quarantine pest if the pest in question 

could be introduced and established in 

the United States through the 

importation of seed. 

Some commenters expressed specific 

concerns about the impact of a 

prohibition on the importation of plants 

for planting except those that have been 

determined to be safe for U.S. 

biodiversity and the importation of 

plants with beneficial uses. One 

commenter cited the discovery of 

important genetic variability in Sophora 

toromiro, now extinct in the wild, in the 

hands of a Chilean nurseryman and 

other individuals outside of botanic 

gardens, as indicating the importance of 

not restricting public access to 

biological diversity. 

In addition, the proposed rule 

discussed some comments we received 

on the May 2004 ANPR that addressed 

biodiversity. We summarized these 

comments as stating that any further 

restrictions on the importation of plants 

for planting would adversely impact the 

overall biodiversity of plants in the 

United States. We stated in the 

proposed rule that the purpose of 

establishing the NAPPRA category, as 

with all our restrictions on the 

importation of plants for planting, is to 

prevent damage to agricultural and 

other resources caused by plants that are 

plant pests or that are hosts of plant 

pests. Preventing this damage, we 

stated, helps to ensure that the current 

biodiversity of the United States is not 

adversely affected. 

One commenter stated that there is no 

evidence that pests or invasive species 

reduce biodiversity; rather, in all cases, 

they have increased biodiversity. The 

commenter asked us to provide peerreviewed scientific evidence that 

biodiversity has decreased at any time 

because of imports. 

We appreciate the opportunity to 

clarify our statement. There are multiple 

types of biodiversity that ecologists and 

other scientists consider when 

evaluating biodiversity. Total 

biodiversity, the type to which we 

believe the commenter refers, involves a 

simple count of the number of species 

present in a country or in an area within 

a country. Site-specific biodiversity may 

take into account the relative 

distribution of taxa within a site, a 

larger area, or even a country. 

We regulate the importation of taxa of 

plants for planting that are quarantine 

pests or that are hosts of quarantine 

pests based on the damage they could 

cause to U.S. agricultural and 

environmental resources. Sometimes, 

the damage a quarantine pest causes can 

reduce site-specific biodiversity. For 

example, if an imported quarantine pest 

plant damaged previously thriving 

species and reduced their numbers 

while rapidly propagating throughout 

their former habitat, the total number of 

species at that site would have 

increased, but the diversity of their 

distribution would have decreased 

substantially. 

Similarly, the emerald ash borer may 

kill virtually all of the ash trees in areas 

in which the beetle occurs. Although 

the total biodiversity within the United 

States was increased by one species 

with the introduction and establishment 

of the emerald ash borer, the 

distribution of hardwood trees in U.S. 

forests where the emerald ash borer 

occurs is markedly less diverse. 

We will only add a plant taxon to the 

NAPPRA category if it is a quarantine 

pest or a host of a quarantine pest. 

Preventing the introduction of 

quarantine pests or hosts of quarantine 

pests into the United States helps to 

avert the damage that would occur if 

they were introduced. Sometimes, as 

discussed, that damage can reduce 

biodiversity, meaning that preserving 

existing biodiversity is one beneficial 

effect associated with preventing 

damage from quarantine pests. 

With respect to the general concerns 

about restricting access to biodiversity, 

as we will only add specific taxa to the 

NAPPRA category based on our 

determination that the taxa are 

quarantine pests or hosts of quarantine 

pests, we do not believe that 

biodiversity and importation of plants 

with beneficial effects will be widely 

affected. The importation of most taxa of 

plants for planting will continue to be 

allowed. 

One commenter stated that the 

proposed rule did not seem to be 

entirely in accordance with ISPM No. 1, 

‘‘Phytosanitary Principles for the 

Protection of Plants and the Application 

of Phytosanitary Measures in 

International Trade.’’ (Countries that are 

signatories to the IPPC, including the 

United States, commit to promulgating 

regulations that are consistent with the 

various ISPMs, unless a country 

supports a deviation from the ISPMs 

with a technical justification.) The 

commenter specifically cited the 

principles of necessity, managed risk, 

minimal impact, and technical 

justification that are discussed in that 

document. The commenter stated that it 

would be difficult to provide specific 

comments on this issue, as the list of 

plants added to the new category is not 

known. 

We are not adding any taxa of plants 

for planting to the NAPPRA category in 

this rulemaking; this rulemaking only 

sets up the NAPPRA category. Members 

of the public will have the opportunity 

to comment on all additions to the 

NAPPRA category. 

We have reviewed the principles cited 

by the commenter from ISPM No. 1 and 

found the proposed rule to be in 

accordance with those principles. 

Necessity: ISPM No. 1 states that 

contracting parties (i.e., signatories to 

the IPPC) may apply phytosanitary 

measures only where such measures are 

necessary to prevent the introduction 

and/or spread of quarantine pests. We 

will only add taxa to the NAPPRA 

category when it is necessary to do so 

to prevent the introduction of 

quarantine pests, either taxa of plants 

for planting that are quarantine pests 

themselves or taxa that are hosts of 

quarantine pests. 

Managed risk and minimal impact: 

ISPM No. 1 states that contracting 

parties should apply phytosanitary 

measures based on a policy of managed 

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risk, recognizing that risk of the spread 

and introduction of pests always exists 

when importing plants, plant products 

and other regulated articles. It also 

states that contracting parties should 

apply phytosanitary measures with 

minimal impact. However, no 

mitigation measures are available for 

taxa of plants for planting that are 

quarantine pests other than not 

authorizing their importation, or 

allowing their importation only under a 

permit with conditions designed to 

prevent their escape into the wider 

environment. We recognize that 

mitigation measures may be available 

for some taxa of plants for planting that 

are hosts of quarantine pests, but we 

would need time to develop them and 

present them in a comprehensive PRA; 

during that time, we would list such 

taxa as NAPPRA, to prevent the 

introduction of quarantine pests into the 

United States. This is consistent with 

the World Trade Organization (WTO) 

Agreement on Sanitary and 

Phytosanitary Measures (SPS 

Agreement), which is the document that 

recognizes the IPPC as a standardsetting body for plant health issues. 

In Article 5 of the WTO SPS 

Agreement, paragraph 7 states: ‘‘In cases 

where relevant scientific evidence is 

insufficient, a Member may 

provisionally adopt sanitary or 

phytosanitary measures on the basis of 

available pertinent information, 

including that from the relevant 

international organizations as well as 

from sanitary or phytosanitary measures 

applied by other Members. In such 

circumstances, Members shall seek to 

obtain the additional information 

necessary for a more objective 

assessment of risk and review the 

sanitary or phytosanitary measure 

accordingly within a reasonable period 

of time.’’ The NAPPRA process allows 

us to act on the basis of available 

pertinent information and provides for 

review of the measure, meaning that 

NAPPRA is consistent with the WTO 

SPS Agreement and thus with the 

governing principles of international 

plant health regulation. 

Technical justification. ISPM No. 1, 

quoting the IPPC, states that contracting 

parties shall technically justify 

phytosanitary measures ‘‘* * * on the 

basis of conclusions reached by using an 

appropriate pest risk analysis or, where 

applicable, another comparable 

examination and evaluation of available 

scientific information.’’ A data sheet 

detailing the scientific evidence we use 

in making a determination that a taxon 

of plants for planting is a quarantine 

pest or a host of a quarantine pest will 

be made available along with the 

Federal Register notice announcing our 

determination. Commenters will be free 

to address the adequacy of the scientific 

information we use in order to make 

such a determination in their comments. 

Definition of Quarantine Pest 

We proposed to add a definition of 

the term quarantine pest to the 

regulations in § 319.37–1. As mentioned 

earlier, the proposed definition read: ‘‘A 

plant pest or noxious weed of potential 

economic importance to the United 

States and not yet present in the United 

States, or present but not widely 

distributed and being officially 

controlled.’’ This definition was based 

on the definition of quarantine pest in 

the IPPC Glossary of Phytosanitary 

Terms. 

In the proposal, we noted that the 

PPA definition of ‘‘noxious weed’’ 

includes references to the weed’s impact 

on agriculture, natural resources, public 

health, and the environment, among 

other things, while the IPPC definition 

of quarantine pest itself refers only to 

economic importance. However, 

Appendix 2 to the IPPC Glossary 

explains that the term ‘‘economic 

importance’’ is to be understood as 

having a broad meaning encompassing 

potential damage to the natural 

environment as well. 

Several commenters recommended 

that we explicitly include in the 

definition of quarantine pest references 

to the potential environmental and 

public health importance of the pest. 

While acknowledging that Appendix 2 

to the Glossary contains references to 

these areas, these commenters stated 

that the definition would be more easily 

understood if it incorporated references 

to the environment and public health. 

Another commenter stated that APHIS 

should consider revisions to the 

regulations that allow for protection of 

natural ecosystems, unless the 

responsibility to manage and regulate 

imports that could have damaging 

impacts to natural systems in the United 

States is under the jurisdiction of 

another agency. The commenter stated 

that natural ecosystems in the United 

States are integral to American 

agriculture, supporting livestock grazing 

and meat production and providing 

habitat for native pollinators, which are 

becoming increasingly important to 

agricultural crop production with the 

continued decline of European 

honeybees. 

We appreciate the commenters’ 

concerns. However, we have determined 

that it is not necessary to include 

references to the potential 

environmental or public health 

importance of a quarantine pest in the 

definition of quarantine pest. As stated 

in the proposal, the term ‘‘economic 

importance’’ has a broad meaning. 

Clearly, a pest that caused damage to the 

wider environment (including natural 

ecosystems) would be of economic 

importance, and we have regulated 

pests as quarantine pests that pose a 

threat primarily to the environment 

rather than to agricultural resources; the 

Asian longhorned beetle and P. 

ramorum are two examples. 

We would also consider the potential 

public health impacts of a pest, as such 

impacts would necessarily have an 

effect on the economy. For example, we 

list giant hogweed (Heracleum 

mantegazzianum) as a noxious weed in 

part because its leaves and stem 

produce a clear sap that photosensitizes 

the skin of humans, leading to 

photodermatitis, which results in 

painful and lasting blisters. Sap that 

comes into contact with the eyes can 

cause temporary or permanent 

blindness. Another noxious weed, 

kodomillet (Paspalum scrobiculatum), 

clogs irrigation and drainage ditches 

and is toxic to animals and humans. 

Such noxious weeds clearly affect 

public health, and thus have economic 

impacts. 

The definition of quarantine pest 

incorporates the terms plant pest, as it 

has been defined in § 319.37–1, and 

noxious weed, a definition of which this 

final rule adds to § 319.37–1. The 

definition of plant pest refers to damage 

to any plant or plant product and thus 

encompasses damage to environmental 

resources as well as agricultural 

resources. As commenters noted, the 

definition of noxious weed refers to 

damage to crops (including plants for 

planting or plant products), livestock, 

poultry, or other interests of agriculture, 

irrigation, navigation, the natural 

resources of the United States, the 

public health, or the environment. This 

definition also encompasses 

environmental and public health 

concerns. By incorporating the 

definitions of plant pest and noxious 

weed into the definition of quarantine 

pest, we make clear our intentions to 

regulate to protect the environment and, 

where applicable, public health as well 

as agriculture. 

We proposed to remove the definition 

of plant pest from the regulations in the 

proposed rule, as we proposed to use 

the term quarantine pest exclusively 

elsewhere in the regulations. However, 

to ensure that the meaning of the term 

plant pest within the definition of 

quarantine pest is understood, and to 

make it clear that damage to 

environmental resources as well as 

agricultural resources is considered in 

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31178 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

determining whether a pest qualifies as 

a quarantine pest, we are retaining the 

definition of plant pest in this final rule. 

We have long considered the effects of 

quarantine pests on the environment 

and on public health in making 

regulatory decisions. For example, we 

prepare our PRAs for fruits and 

vegetables in accordance with 

guidelines that consider the 

environmental impacts of introducing 

quarantine pests associated with those 

commodities into the United States. 

Environmental impacts that we consider 

for such quarantine pests include 

ecological disruptions, reduced 

biodiversity, effects on threatened or 

endangered species, and the likelihood 

that the introduction of the species 

would stimulate chemical or biological 

control programs. Our guidelines for 

preparing a WRA, which are available 

on the Web at http:// 

www.aphis.usda.gov/plant_health/ 

plant_pest_info/weeds/downloads/ 

wra.pdf, also specifically consider the 

environmental impacts of the taxon that 

is being evaluated; the environmental 

impacts include several ecosystemrelated considerations, including 

natural system processes, community 

composition, and community structure, 

as well as potential impacts on human 

health, such as allergies or changes in 

air or water quality (for example, due to 

toxins). 

The definition of quarantine pest that 

we are adding to the regulations in this 

final rule thus does not represent a 

change from our current policy, and we 

will continue to consider environmental 

and public health consequences 

associated with the introduction and 

establishment of quarantine pests. 

Definition of Official Control and Scope 

of the NAPPRA Category 

As noted, we proposed to define a 

quarantine pest as a plant pest or 

noxious weed that is not yet present in 

the United States, or present but not 

widely distributed and being officially 

controlled. We proposed to add a 

definition of official control to the 

regulations in § 319.37–1 as well; it was 

based on the definition of that term in 

the IPPC Glossary. The definition we 

proposed read as follows: ‘‘The active 

enforcement of mandatory 

phytosanitary regulations and the 

application of mandatory phytosanitary 

procedures with the objective of 

eradication or containment of 

quarantine pests.’’ 

Several commenters stated that taxa of 

plants for planting that are present in 

the United States should be eligible for 

designation as quarantine pests and thus 

evaluated to determine whether those 

plants should be added to the NAPPRA 

list of quarantine pest plants. 

One commenter stated that the 

proposal should not be limited to 

addressing certain species based on 

their history of importation; such a 

limitation, in the commenter’s view, has 

no scientific basis. Another commenter 

stated that species already introduced 

into the United States are among those 

that pose the highest risk, both because 

they have already entered the United 

States and because many plants that 

establish in the United States are 

inherently invasive. 

Some commenters stated that all 

plants present in the United States 

should be included in the scope of the 

NAPPRA category because the risk 

associated with plants already present 

in the United States can change 

unexpectedly. Another commenter 

stated that we do not know the potential 

that many plant species have for 

invasiveness in the face of further 

fragmentation and climate change. 

Similarly, two commenters stated that 

the economic importance of each plant 

present in the United States should be 

evaluated. 

One commenter who supported 

adding plants that are present in the 

United States to the NAPPRA lists cited 

Russian olive’s recent spread into 

ecosystems in the western United States 

as indicating that taxa already present in 

the United States are likely to cause 

problems. 

We agree with these commenters that 

plant taxa that are already present in the 

United States may cause damage to 

agricultural and environmental 

resources within the United States. Our 

definition of quarantine pest does not 

prevent us from restricting the 

importation of taxa of plants for 

planting that are already in the United 

States, if those taxa are not widely 

distributed and under official control. 

(For simplicity, the rest of this 

discussion will refer to ‘‘under official 

control’’ without mentioning the 

distribution criterion, except where it 

needs to be emphasized.) However, the 

purpose of the NAPPRA category is to 

address the risk associated with the 

importation of taxa of plants for 

planting. Restrictions on the interstate 

movement of plants for planting (as well 

as other commodities) to prevent the 

spread of quarantine pests within the 

United States are found in 7 CFR parts 

301, 302, 318, and 360. 

It is important to note that 

determining that a plant taxon is 

invasive is not the same as determining 

whether it is a quarantine pest. For a 

plant taxon to be classified as a 

quarantine pest, that plant taxon must 

be a noxious weed of potential 

economic importance to the United 

States, based on the damage it causes to 

agricultural and environmental 

resources, and must not be present in 

the United States, or present but under 

official control. The spread of a plant in 

a new habitat, which is commonly 

characterized as ‘‘invasiveness,’’ would 

not be sufficient by itself to cause us to 

determine that a plant should be 

considered for designation as a 

quarantine pest. 

For plants for planting that are 

present in the United States, we have 

determined that the best use of APHIS’ 

limited resources for evaluation of taxa 

of plants for planting, and for ensuring 

that plants for planting whose 

importation is not authorized are not 

imported, is to limit the scope of the 

NAPPRA category to plant taxa that are 

under official control. There are several 

reasons for this. One is that if a taxon 

of plants for planting spreads quickly 

enough and causes enough damage to be 

a quarantine pest, and the taxon is not 

under official control within the United 

States, that taxon would likely expand 

its range to all suitable areas within the 

United States even if we were to add it 

to the NAPPRA list. Adding the taxon 

to the NAPPRA list might result in 

fewer introductions of the taxon to areas 

where the taxon is not yet present, but 

would not ultimately prevent its spread 

to those areas. Given that we have 

limited resources to evaluate an 

immense number of taxa that could 

potentially be imported, it is 

appropriate to focus our efforts where 

they will be most effective at preventing 

damage to U.S. agricultural and 

environmental resources. 

Another reason for requiring plant 

taxa to be under official control before 

adding them to NAPPRA is that the 

imposition of official control on the 

movement of a taxon within the United 

States is a good indication that the taxon 

is of economic importance, although 

some taxa may be placed under official 

control and found not to be sufficiently 

economically important to continue 

official control upon later evaluation. If 

a pest is present and plant health 

authorities determine that it is of such 

economic importance that they impose 

official controls, the pest would become 

a quarantine pest. This again helps to 

focus our evaluation efforts. 

Finally, not authorizing the 

importation of a plant taxon while 

allowing the free movement of that 

plant taxon within the United States 

would be inconsistent with APHIS’ 

commitment to the WTO principle of 

nondiscrimination between domestic 

and import requirements, as it would 

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treat the importation of the plant taxon 

differently from its interstate movement. 

It should be noted that, under this 

final rule, we may add to the NAPPRA 

category a taxon of plants for planting 

that is already present in the United 

States and not under official control if 

that taxon is a host of a quarantine pest 

that is not present in the United States, 

or one that is present but not widely 

distributed and under official control; 

the importation of such a taxon would 

pose a risk of introducing a quarantine 

pest. 

One commenter stated that the 

importation of any taxon should be 

restricted if its harmful impacts on the 

United States outweigh its benefits, 

regardless of whether the taxon is 

present in the United States. This 

commenter stated that inclusion of such 

plants is supported by the proposed 

definition of quarantine pest if the 

definition of official control is 

interpreted to include State and local 

mandates aimed at eradication or 

containment. The commenter further 

stated that mandates at the State and 

local levels are often the most 

responsive to new pests inflicting 

damage on the ground before the pest 

becomes widespread. 

Another commenter stated that 

requiring plant taxa to be under official 

control in order to qualify as quarantine 

pests strains local agencies. If a plant is 

infrequently present, and believed to be 

of concern, but the local agencies do not 

have the money to place the plant taxon 

under official control, the commenter 

stated, then the best response is not to 

exacerbate the problem by permitting 

the taxon’s importation. The commenter 

expressed concern that regions with 

more limited financial support for 

official control measures will be 

subjected to more pests and invasions 

than those with the resources to 

designate many pests as under control. 

Substituting ‘‘official designation’’ or 

being ‘‘recognized risk’’ as a problem 

plant, the commenter stated, should 

suffice for WTO standards without 

requiring impossible expenditure. 

We agree that State and local 

governments are invaluable partners in 

identifying and responding to new 

pests. We work closely with State and 

local governments to share information 

about pest problems, develop 

phytosanitary controls, and enforce 

restrictions on the intra- and interstate 

movement of plants for planting. 

We are developing a process by which 

a State will be able to request that 

APHIS recognize its regulations and 

procedures as official control for the 

purposes of Federal regulation; we will 

grant recognition if an evaluation of the 

regulations and procedures indicates 

that they are effective and justified 

based on the economic importance of 

the pest. Such regulations and 

procedures could include both control 

and eradication programs and 

designation of a plant taxon as subject 

to movement restrictions. We plan to 

publish a notice in the Federal Register 

to provide information about this 

process once its development is 

complete. We believe this process will 

address the second commenter’s 

concerns. 

With respect to the first commenter’s 

first point, we will only add plants for 

planting that are present in the United 

States to the NAPPRA list if they are 

under official control, for reasons 

discussed earlier. 

One commenter stated that the 

regulations should clearly state that 

quarantine pests: (1) Do not necessarily 

have to be under official control if they 

are already present but not yet 

widespread; and (2) may be later placed 

under official control as a condition of 

being listed as a quarantine pest 

following a PRA. 

A pest already present in the United 

States would not be considered to be a 

quarantine pest unless it was not widely 

distributed and under official control. A 

pest must meet both conditions in order 

to be considered a quarantine pest. 

In practical terms, if a pest is present 

in the United States but not yet widely 

distributed, it is much more likely to be 

designated as a quarantine pest than a 

pest that is widely distributed, as 

official control is more likely to be 

effective for a pest that is not widely 

distributed. Thus, while we are not 

taking the commenter’s suggestion to 

make pests that are not under official 

control eligible to be quarantine pests, 

most pests that are of economic 

importance and whose distribution is 

limited would be eligible for 

designation as a quarantine pest, 

assuming that we determine that official 

control is justified in response to its 

presence. 

As the commenter alludes, one means 

by which we might determine that a 

pest is of economic importance is 

through the completion of a PRA. If we 

complete a PRA that determines that a 

pest is of economic importance to the 

United States, and we determine that 

enforcing mandatory regulations to 

control or eradicate the pest is practical 

and justified by the importance of the 

pest, we would designate that pest as a 

quarantine pest. We could then prohibit 

or restrict its importation, as 

appropriate, under the plants for 

planting regulations. 

One commenter asked how 

introductions of plants for planting that 

are discovered in the field would be 

covered under the proposed rule. The 

commenter expressed specific concern 

about the accidental introduction of taxa 

of plants for planting that become plant 

pests, such as mile-a-minute weed 

(Persicaria perfoliata) and Japanese stilt 

grass (Microstegium vimineum), and 

taxa of plants for planting that are plant 

pests and whose introduction pathway 

is unknown, such as wavyleaf 

basketgrass (Oplismenus hirtellus ssp. 

Undulatifolius). 

If we discover an introduction of a 

taxon of plants for planting that may be 

a quarantine pest, we will evaluate it. If 

the taxon is under official control and 

is of economic importance, we will 

publish a notice proposing to add the 

taxon to the NAPPRA lists. If the taxon 

is not under official control, we will 

further evaluate whether the taxon 

should be under official control; if the 

taxon is of sufficient economic 

importance, we will take appropriate 

regulatory action, which would 

normally be adding it to the list of 

noxious weeds in 7 CFR part 360. We 

will also recognize State and local 

official control programs, if they exist, 

in considering whether to list a pest 

plant in the NAPPRA category. The 

NAPPRA category does not restrict our 

ability to take appropriate action if we 

find a quarantine pest within the United 

States; it simply provides us with a tool 

to address the risk associated with the 

importation of certain taxa of plants for 

planting. 

One commenter encouraged APHIS to 

consider ways to address potentially 

invasive species that are present in the 

United States but have not yet begun to 

spread, through means other than the 

plants for planting regulations if 

necessary. 

We consider preventing the 

importation of species under official 

control to be a powerful tool to address 

such species. As noted earlier, we also 

work with State and local governments 

to share information about pest 

problems and to develop phytosanitary 

controls for emerging pests. We will 

consider whether there are other 

appropriate ways to achieve this goal, 

and we welcome any suggestions on 

how to accomplish this that the public 

can provide. 

One commenter supported using a 

quarantine pest list to place taxa on the 

NAPPRA list and asked whether the 

APHIS actionable pest list would be 

used for this purpose as well. 

The APHIS actionable pest list is used 

at ports of entry to determine whether 

a pest found on imported plant material 

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(whether plants for planting, fruits and 

vegetables, or any other plant material) 

requires regulatory action, such as 

treatment or re-exportation. Pests are 

added to the actionable pest list based 

on their potential to cause damage 

within the United States if introduced. 

We will use this list as a source of taxa 

to be evaluated for addition to the 

NAPPRA category. 

Several commenters addressed the 

issue of when a plant taxon should be 

considered to be ‘‘present in the United 

States,’’ as part of the proposed 

definition of official control. Several 

commenters recommended that APHIS 

collect the full taxonomic identity of all 

imported plants and immediately begin 

developing a database of those plants 

that have already been imported. Some 

commenters stated that we should make 

this information publicly available. 

We agree that we need better data on 

the plants that have been imported into 

the United States. We are exploring 

many means for obtaining that data. 

Currently, under § 319.37–4, a 

phytosanitary certificate must 

accompany almost all imported plants 

for planting. Under § 319.37–4, the 

phytosanitary certificate must identify 

the genus of the article it accompanies. 

When the regulations place restrictions 

on individual species or cultivars 

within a genus, the phytosanitary 

certificate must also identify the species 

or cultivar of the article it accompanies. 

Otherwise, identification of the species 

is strongly preferred, but not required. 

For articles that are not required to be 

accompanied by a phytosanitary 

certificate, we require alternate means of 

taxonomic identification. We are using 

the taxonomic and volume information 

collected under these requirements to 

begin building a database of imported 

plants for planting. We are also 

exploring other potential sources of data 

on this topic. If we get the necessary 

data, we will consider making it 

publicly available. 

Some commenters suggested specific 

thresholds to determine whether a taxon 

of plants for planting is present within 

the United States. 

One group of commenters 

recommended that any taxon that does 

not have at least a 50-year record of 

cultivation outside its native range be 

placed automatically on the NAPPRA 

list. The commenters suggested that if 

records of historical cultivation of a 

taxon are not readily available through 

standard sources, the taxon should be 

placed on the NAPPRA list. The 

commenters recommended that we 

allow any party proposing to import a 

taxon added to the lists because no 

records of historical cultivation were 

available to request reevaluation by 

supplying records of cultivation for over 

50 years. 

Another commenter stated that a 

species without a long record of 

cultivation outside its native range 

should be treated cautiously even if it 

has not yet become invasive, given the 

potential lag time between introduction 

and invasion. 

The commenters appear to proceed 

from the assumption that all taxa of 

plants for planting are quarantine pests. 

As discussed earlier in this document, 

we have not found this to be the case. 

Taking the commenters’ 

recommendations would stop the 

importation of most taxa of plants for 

planting, including all taxa that have 

not previously been imported and most 

taxa that are currently being imported, 

without scientific evidence to indicate 

that any specific taxa among them are 

quarantine pests or hosts of quarantine 

pests. Our goal in establishing the 

NAPPRA category is to provide a 

process for imposing restrictions that 

directly address the risk associated with 

specific plants for planting, not to 

establish broad prohibitions or 

restrictions on the importation of plants 

for planting. 

Some commenters (describing taxa 

already present in the United States as 

‘‘precedented’’) stated that taxa of which 

at least 1,000 propagules (any plant 

material used for propagation) have 

been imported into the United States in 

1 or multiple shipments and that are 

still extant within the United States 

should be considered precedented. 

We would generally consider taxa of 

plants for planting that meet the 

threshold suggested by the commenters 

to be present in the United States. 

However, there may be cases in which 

fewer than 1,000 propagules of a taxon 

have been imported, but the propagules 

that have been planted have resulted in 

the taxon’s widespread distribution. 

Such a taxon would be considered to be 

present in the United States for the 

purpose of determining whether it is a 

quarantine pest. In addition, we 

currently lack data that would allow us 

to determine whether 1,000 propagules 

of a taxon have been imported into the 

United States, or whether those 

propagules still existed in the United 

States, if the taxon has not entered 

wider cultivation. When we publish a 

notice in the Federal Register indicating 

that we have determined that a taxon of 

plants for planting is a quarantine pest, 

we will welcome any data on previous 

importation of the taxon that the public 

can provide. 

Two commenters recommended that 

we add to the regulations a definition of 

‘‘in cultivation,’’ apparently as a proxy 

for determining whether a plant taxon is 

present in the United States and not 

under official control. These 

commenters recommended that we 

define taxa as ‘‘in cultivation’’ if they 

currently are, or have in the past been, 

grown intentionally by one or more 

persons in the United States. The 

commenters stated that previously 

grown taxa should be defined as ‘‘in 

cultivation’’ because it is common for a 

species to be brought into cultivation by 

a specialist gardener, die out, and then 

be re-imported while the gardener 

learns how to grow it. The commenters 

noted that the fact that a species died 

out despite being grown carefully by a 

specialist is extremely strong evidence 

that the species is not invasive. 

The commenters recommended that, 

when a taxon is selected for potential 

inclusion in the NAPPRA lists, the 

public should be given the opportunity 

to state whether or not that taxon is in 

cultivation. If after inclusion in the 

NAPPRA list it is discovered that a 

taxon was already in cultivation in the 

United States, the commenters 

recommended that such information, if 

verified by APHIS, should be grounds 

for removal of the taxon from the 

NAPPRA list. The commenters noted 

that APHIS could then conduct a PRA 

on that taxon if there are concerns that 

it might be invasive. 

We have determined that it is not 

necessary to add a definition of ‘‘in 

cultivation’’ to the regulations. The 

definitions of quarantine pest and 

official control more precisely indicate 

that, when determining whether a taxon 

of plants for planting is a quarantine 

pest, we consider whether the taxon is 

present in the United States, regardless 

of whether it is in cultivation or in the 

wild. However, we agree with the 

commenters that the fact that a taxon 

died out in cultivation would be useful 

evidence in evaluating whether that 

taxon could qualify as a quarantine pest. 

Every time we make a determination 

that a taxon of plants for planting is a 

quarantine pest, we will publish a 

notice in the Federal Register informing 

the public of our determination and 

requesting public comments. 

Commenters will have an opportunity to 

provide information indicating that the 

taxon is in cultivation, which would 

indicate that the taxon is present in the 

United States, and thus not eligible for 

addition to the NAPPRA category unless 

it is under official control. If 

commenters indicate that the taxon was 

at one point in cultivation but died out, 

that would indicate that the taxon 

would be unlikely to cause 

economically significant damage, and 

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we would consider that to be evidence 

against adding the taxon to the NAPPRA 

category. 

We will typically consult several 

sources in determining whether a plant 

is present in the United States, 

including the PLANTS database (at 

http://plants.usda.gov/) and the GRIN 

database (at http://www.ars-grin.gov/cgibin/npgs/html/index.pl) and various 

flora and plant catalogues. These 

resources indicate whether there is a 

known, active presence of a plant in the 

United States, both in cultivation and in 

the wild. 

Another commenter stated that the 

presence of a plant in a limited number 

of places does not mean that a particular 

importation is safe from carrying pests, 

or being a pest. The presence in the 

United States of a specimen brought 

through one pathway, or present in a 

botanic garden, for example, provides 

minimal evidence that the same species, 

imported in quantity from a different 

country, is safe from carrying pests or 

becoming a pest. The commenter stated 

that evidence from such individual 

specimens tells us very little about the 

risk of importing them in quantity since 

they may not have both sexes, sufficient 

self-incompatibility alleles, or time and 

habitat to show whether breeding and 

invasion would occur. 

This commenter also stated that, if 

any presence is sufficient to exclude a 

taxon from designation as a quarantine 

pest, it would encourage poor taxonomy 

to circumvent the rules. An importer 

could search the catalog of botanic 

gardens to see if any close relatives are 

present and classify the importation 

under that taxon. Unless an expert 

could recognize the difference during 

the permitting process or importation, 

this commenter stated, another species 

could be allowed for importation based 

upon the evidence of a single specimen 

or just a few. 

We agree with this commenter that 

the presence of a plant taxon in the 

United States does not necessarily 

provide information about whether it is 

a pest. Unless the plant is also under 

official control, though, it would not be 

eligible for consideration as a 

quarantine pest. However, as noted 

earlier, we could still add the taxon to 

NAPPRA if it was a host of a quarantine 

pest. 

It is worth noting that we typically 

would not have a record of a plant’s 

cultivation if only a single specimen or 

very few plants of that taxon were 

present in the United States, and if a 

plant was imported under a false 

taxonomic designation, we would 

almost certainly have no record at all of 

its importation and cultivation. Thus, if 

evidence indicated that such a plant 

taxon was a pest of potential economic 

importance to the United States, we 

would publish a notice in the Federal 

Register announcing our determination 

that the taxon was a quarantine pest. 

Also, our regulations require the 

phytosanitary certificate accompanying 

imported plants for planting to contain 

correct taxonomic information. If we 

determine that the phytosanitary 

certificate under which the plants for 

planting were imported had included 

incorrect information, we would refuse 

entry for the consignment of plants for 

planting, the importer would be subject 

to civil or criminal penalties under the 

PPA for violating the regulations, and 

we would notify the NPPO of the 

exporting country of this nonconformance with our regulations and 

the IPPC. 

This commenter went on to state that 

it is worrisome that the simple presence 

of a few plants in the United States 

could prevent APHIS from conducting a 

PRA or WRA, which would strongly 

incentivize questionable behavior to 

allow importations. The commenter 

stated that there have been rumors for 

years of environmentalists arranging to 

find endangered species near a project 

they wish to block, or developers 

happening to have endangered species 

disappear before officially noticed. The 

commenter expressed concern that a 

similar problem would arise with 

respect to plants for planting: To allow 

for a potentially lucrative import 

pathway, one would merely need to find 

a presence of the species in the United 

States not under official control. This 

could be due to an illegal importation or 

other release. Upon identifying the 

minimum standard of some individuals 

reproducing in the wild, the commenter 

stated, the whole risk assessment is at 

risk of collapse. 

The existence of some individuals of 

a plant taxon in the United States does 

not make it impossible for APHIS to 

conduct a PRA and WRA on the taxon; 

APHIS still has the option of conducting 

a PRA and WRA and determining that 

the plant taxon should be placed under 

official control, either as a noxious weed 

or as a host of a quarantine pest. With 

respect to adding taxa to the NAPPRA 

category, which the commenter may 

have been concerned about as well, the 

existence of a few individuals of a taxon 

within the United States would not 

prevent us from adding that taxon to the 

NAPPRA category if we also determine 

that the taxon poses such a risk that it 

must be placed under official control. 

One commenter stated that we should 

evaluate for addition to the NAPPRA 

lists all taxa that do not have a long 

history of being imported pest-free from 

a specific country and that are not 

characterized by stable production 

conditions. The commenter stated that 

such criteria will allow APHIS to better 

predict risk when considering plants 

that have a history of importation. 

We will take the information the 

commenter suggests into account when 

deciding which taxa to evaluate for 

inclusion in the NAPPRA category, as 

such taxa are more likely to be 

quarantine pests than taxa that have 

long histories of safe importation and 

stable production conditions. We will 

also take such information into account 

as we continue the process of revising 

our plants for planting regulations. 

As noted earlier, we based the 

proposed definition of official control 

on the definition of that term in the 

IPPC Glossary. The only change we 

made to the IPPC definition was to omit 

the provisions relating to regulated nonquarantine pests, because the plants for 

planting regulations do not presently 

include provisions for regulating nonquarantine pests. 

One commenter stated that, while the 

concept of regulated non-quarantine 

pest has not yet been formally applied 

in the United States, the National Plant 

Board’s 1999 Safeguarding Review 

urged implementation of the concept 

and provided specific phytosanitary 

issues for which the concept could be 

relevant. Indeed, the commenter stated, 

the use of provisions for regulated nonquarantine pests is being actively 

discussed as an alternative regulatory 

approach to full deregulation of plant 

pathogens that are now classified as 

quarantine pests. The commenter urged 

APHIS to take the proactive step of 

defining ‘‘regulated non-quarantine 

pest’’ at this time, consistent with the 

IPPC definition. 

We believe it would be confusing to 

include in our definition of official 

control a reference to a type of pest that 

would not otherwise be referred to in 

the regulations. If, in the future, we 

propose to amend the plants for 

planting regulations to address 

regulated non-quarantine pests, we 

would amend this definition to include 

regulated non-quarantine pests, 

consistent with the IPPC Glossary 

definition. 

We will continue to consider 

regulating non-quarantine pests as a 

potential means to manage the risk 

associated with plants for planting and 

other plant products. Our decision not 

to include this language in the 

definition of official control in this final 

rule should not be construed to indicate 

that we have decided against using the 

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regulated non-quarantine pest 

regulatory approach in the future. 

Definition of Plants for Planting 

We proposed to add a definition of 

plants for planting to the regulations in 

§ 319.37–1. The proposed definition 

read as follows: ‘‘Plants intended to 

remain planted, to be planted or 

replanted.’’ 

Several commenters stated that the 

proposed definition is less clear than 

the definition of plant in the PPA, 

which reads as follows: ‘‘Any plant 

(including any plant part) for or capable 

of propagation, including a tree, a tissue 

culture, a plantlet culture, pollen, a 

shrub, a vine, a cutting, a graft, a scion, 

a bud, a bulb, a root, and a seed.’’ These 

commenters asked that we use this 

definition in § 319.37–1. 

We already define plant in § 319.37– 

1 using the definition of plant in the 

PPA. We proposed to define plants for 

planting in § 319.37–1 to make the 

plants for planting regulations 

consistent with the IPPC Glossary of 

Phytosanitary Terms. The definition of 

plants for planting refers to the 

definition of plant; any plant for 

planting is by definition a plant. Thus, 

all the information in the PPA definition 

of plant is already in the regulations. We 

are making no changes in response to 

these comments. 

Definition of Noxious Weed 

We proposed to add a definition of 

noxious weed to the regulations in 

§ 319.37–1. The proposed definition 

read as follows: ‘‘Any plant or plant 

product that can directly or indirectly 

injure or cause damage to crops 

(including plants for planting or plant 

products), livestock, poultry, or other 

interests of agriculture, irrigation, 

navigation, the natural resources of the 

United States, the public health, or the 

environment.’’ 

One commenter stated that every 

species can be considered to ‘‘indirectly 

injure the environment’’ by some 

criterion and noted that some invasion 

biologists consider the mere presence of 

any plant deemed ‘‘non-native’’ to be 

‘‘harm’’ to the environment. The 

commenter asked how economic harm 

and economic benefit would be 

evaluated and balanced. The commenter 

also asked how ecological harm would 

be defined and what scientific basis 

there would be for the definition. As 

examples of potentially problematic 

cases, the commenter stated that wheat 

and maize ‘‘harm’’ the environment 

because their cultivation destroys 

thousands of square miles of formerly 

diverse prairie ecosystem and replaces 

them with monotypic ‘‘crop deserts’’ 

with increased erosion and high loads of 

toxins. The commenter also noted that 

hydrilla harms navigation by interfering 

with small boats, but benefits fisheries 

and birds. 

The proposed definition of noxious 

weed is almost identical to the 

definition of noxious weed in the PPA, 

except that a reference to ‘‘nursery 

stock’’ in the PPA definition was 

changed to ‘‘plants for planting,’’ to be 

consistent with our other proposed 

changes to the regulations. The 

proposed definition thus reflects our 

statutory authority. 

We proposed to use the term noxious 

weed in the plants for planting 

regulations only with respect to the 

NAPPRA category; the regulations for 

plants that we regulate as noxious 

weeds are in 7 CFR part 360. The 

regulations governing the NAPPRA 

category, as established in this final 

rule, allow us to ensure that the 

importation of plant taxa that are 

quarantine pests (and thus noxious 

weeds) is not authorized. We will only 

list in the NAPPRA category quarantine 

pest plants that are of potential 

economic importance to the United 

States and not yet present in the United 

States, or present but not widely 

distributed and being officially 

controlled. Wheat and maize are thus 

not problematic with respect to the 

NAPPRA category, as they are widely 

distributed in the United States and not 

under official control. Hydrilla (Hydrilla 

verticillata) is listed as a Federal 

noxious weed in 7 CFR part 360 and 

may only be imported under a permit 

containing conditions to prevent its 

dissemination in the United States. 

With respect to the commenter’s 

concern about defining ‘‘ecological 

harm,’’ when evaluating plant taxa for 

inclusion on the NAPPRA list of 

quarantine pest plants, we would 

evaluate whether the taxon has the 

potential to cause the injury or damage 

described in the proposed definition of 

noxious weed, based on scientific 

evidence. If we determine that the 

damage is of potential economic 

importance, thus making the taxon a 

quarantine pest, we will publish a 

notice in the Federal Register 

announcing our determination and 

making a data sheet detailing the 

scientific evidence that we evaluated in 

making that determination available for 

public comment. At that point, the 

public will have the opportunity to 

comment on our determination. 

After a taxon is listed in the NAPPRA 

category as a quarantine pest, a WRA 

would be conducted. If the WRA found 

that the taxon itself did not need to be 

listed as a noxious weed, a PRA would 

be conducted in order to fully analyze 

the potential of the taxon to serve as a 

host of a quarantine pest. (A WRA is a 

type of PRA that focuses on the risk 

associated with the plant itself. When 

we refer to a PRA in this document and 

in the regulations, we mean an analysis 

of both whether the taxon should be 

regulated as a noxious weed under the 

regulations in 7 CFR part 360 and 

whether it should be regulated as a host 

of a quarantine pest, as appropriate.) 

Any subsequent rulemaking to prohibit 

the importation of the taxon, or to allow 

its importation subject to restrictions, 

would include a detailed evaluation of 

the costs and benefits of importing the 

taxon. 

Definition of Taxon (Taxa) 

We proposed to add a definition of 

taxon (taxa) to the regulations in 

§ 319.37–1; it was based on the 

definition of that term in the IPPC 

Glossary. The proposed definition read 

as follows: ‘‘Any grouping within 

botanical nomenclature, such as family, 

genus, species, or cultivar.’’ The 

proposed rule referred to adding taxa of 

plants for planting to the NAPPRA 

category. 

One commenter recommended that 

we use scientifically valid taxonomic 

levels for evaluating quarantine pests. 

For pests, the commenter stated, this 

could include sub-species designations 

such as pathogen genotypes that can 

vary highly in impacts and can also 

hybridize with established non-native or 

native microorganisms. For pest hosts, 

the commenter stated, some pests can 

impact many species above the generic 

classification. For example, a 

pathogenic disease strain was 

introduced to Hawaii that infects 23 

different plant species present in 

Hawaii, including 5 native species, one 

of which is critically endangered. These 

species are spread over 12 genera within 

the myrtle family. Because the pest is 

not under official control, the 

commenter stated, it does not qualify as 

a quarantine pest, although there are 

likely other genotypes not yet present in 

the United States that could increase the 

threat to Hawaii and further jeopardize 

trade with other Pacific Rim countries. 

Several commenters expressed 

concern that we might add large groups 

of plants for planting to the NAPPRA 

category without adequate scientific 

justification. One stated that the level of 

rigor required to regulate should 

increase with each increasing level of 

nomenclature. Two stated that we 

should add new taxa to the NAPPRA 

category at the species level rather than 

at the genus level, as plant genera are far 

too variable for broad bans to be 

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meaningful, and regulation at the genus 

or higher level will discredit the system 

in the eyes of plant enthusiasts. 

One commenter asked what would 

prevent us from including an entire 

family in the NAPPRA category, such as 

the Solanaceae. The commenter stated 

that such an action could easily be 

justified on the basis that doing so will 

‘‘help prevent [the introduction of] a 

quarantine pest.’’ The commenter stated 

that banning large groups of plants 

would lead to a situation in which the 

importation of most plants for planting 

is banned in practice. 

One commenter stated that we should 

not base determinations of invasiveness 

on relatives of a species. The commenter 

gave the example of the genus Lonicera, 

in which Lonicera japonica, L. maackii, 

L. tatarica, and L. xylosteum (in 

decreasing order of invasiveness) might 

be weedy, but their weediness would 

not be evidence sufficient to designate 

the other 180–200 species in the genus 

as weedy. 

We agree with the first commenter 

that we should regulate at the 

appropriate taxonomic level, and we 

will take the considerations the 

commenter mentioned into account. 

We will provide scientific evidence 

that supports our determination that it 

is necessary to add a taxon of plants for 

planting to the NAPPRA category, 

including providing evidence that the 

taxonomic grouping we are adding to 

the NAPPRA category is appropriate. As 

with the rest of our scientific evidence, 

the public will be able to comment on 

whether the taxonomic level at which 

we have determined it is necessary to 

regulate is appropriate. If public 

comments lead us to determine that the 

taxonomic grouping specified in the 

initial Federal Register notice is not 

appropriate, we will not add the taxon 

to the NAPPRA category. (In that case, 

we might publish a second notice in 

which we address a different taxonomic 

grouping.) 

In adding plants that are quarantine 

pests and plants that are hosts of 

quarantine pests to the NAPPRA 

category, we expect to continue our 

current practices with respect to 

regulating at different taxonomic levels. 

Most noxious weeds are regulated at the 

species level, although higher and lower 

taxonomic levels have been regulated as 

noxious weeds based on scientific 

evidence. For example, Striga spp. are 

all listed as parasitic weeds in 7 CFR 

part 360, while only the Mediterranean 

clone of the species Caulerpa taxifolia 

is listed as an aquatic weed. We would 

only add taxa higher than the species 

level to the NAPPRA category as 

quarantine pests if most of the species 

in a genus had been shown to be 

quarantine pests; we would not regulate 

the entire Lonicera genus in the example 

given by one commenter. 

Most hosts of quarantine pests are 

regulated at the genus level, given the 

wider range of species within a genus 

that can be hosts of quarantine pests; 

again, we have regulated both higher 

and lower taxonomic levels as hosts of 

quarantine pests based on scientific 

evidence. 

We would not typically add families 

of plants for planting to the NAPPRA 

category, although some families have 

been regulated as hosts of quarantine 

pathogens. (For example, the 

importation of Rutaceae is prohibited 

due to various citrus pathogens.) If we 

did determine that it was necessary to 

add an entire family to the NAPPRA 

category, we would provide scientific 

evidence supporting our determination. 

Initiating an Evaluation of a Plant 

Taxon for Addition to the NAPPRA 

Category; Public Requests 

In the proposal, we did not describe 

the conditions under which we would 

begin an evaluation of a plant taxon to 

determine whether it should be added 

to the NAPPRA category, stating only 

that the addition of a taxon would be 

based on scientific evidence. 

One commenter asked what the 

triggering mechanism would be for 

adding a taxon. The commenter asked 

whether a taxon would be considered 

for listing any time an exporting 

country, or a U.S. importer of plants for 

planting, notified APHIS that it wanted 

to import those plants for planting. The 

commenter also asked how the NAPPRA 

category would apply to plant explorers 

bringing in small numbers of plants for 

planting from globally dispersed 

locations in order to propagate them on 

a trial basis. Other commenters asked 

generally for more information on the 

Plant Protection and Quarantine (PPQ) 

program’s process for initiating an 

evaluation. 

We appreciate the opportunity to 

provide more information on the 

NAPPRA listing process. We would 

initiate an evaluation of a taxon of 

plants for planting for addition to the 

NAPPRA category whenever we become 

aware of a quarantine pest risk 

associated with the importation of a 

taxon of plants for planting. This could 

include interceptions of imported plants 

for planting that are infested with 

quarantine pests, literature reviews and 

scientific references, and results from 

scientific screening systems and 

predictive models. We would not 

automatically initiate an evaluation 

upon receiving a request for an import 

permit or upon becoming aware that 

plant explorers want to import small 

quantities of a taxon. 

Several commenters stated that 

members of the public should be 

allowed to suggest that species be added 

to the NAPPRA category. Some 

commenters asked that we accept 

recommendations from specific groups 

of people, including ecologists who 

study invasive plant species, scientists 

in general, and local natural resource 

managers. One commenter stated that 

we should allow the public to suggest 

species to add to the NAPPRA category 

in the absence of an immediate 

importation request, since local weed 

management areas and invasive plant 

councils may elect to prevent movement 

of species that they expect will be 

problematic into their areas. 

We agree with these commenters that 

the public should be allowed to suggest 

species to be evaluated for addition to 

the NAPPRA category. To facilitate 

public input, we have established an email drop box on our plants for planting 

Web site, http://www.aphis.usda.gov/ 

import_export/plants/plant_imports/ 

Q37_nappra.shtml, that will allow the 

public to submit taxa for evaluation. We 

will also accept suggestions that are 

mailed to APHIS at Risk Management 

and Plants for Planting Policy, ATTN: 

NAPPRA List Candidates, RPM, PPQ, 

APHIS, 4700 River Road Unit 133, 

Riverdale, MD 20737–1236. (This 

address will also be available on the 

plants for planting Web site.) 

The Web site also recommends that 

members of the public who suggest taxa 

to be evaluated for addition to the 

NAPPRA category include certain 

information, if available, with their 

suggestion, to facilitate evaluation of the 

taxon. The basic information we would 

need to evaluate a taxon is the taxon’s 

scientific name and author and its 

common name(s). If the taxon was to be 

evaluated to determine whether it is a 

host of a quarantine pest, the scientific 

name and author and the common 

name(s) of the pest would also be 

necessary. 

Beyond that, helpful information for a 

taxon to be evaluated as a quarantine 

pest plant would include: 

• Whether the taxon is present in the 

United States, and if so, where; 

• If the taxon is present in the United 

States, information regarding any 

official control efforts, 

• The taxon’s habitat suitability in the 

United States (predicted ecological 

range); 

• Dispersal potential (biological 

characteristics associated with 

invasiveness); 

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• Potential economic impacts (e.g., 

potential to reduce crop yields, lower 

commodity values, or cause loss of 

markets for U.S. goods); 

• Potential environmental impacts 

(e.g., impacts on ecosystem processes, 

natural community composition or 

structure, human health, recreation 

patterns, property values, or use of 

chemicals to control the taxon); 

• Potential pathways for the taxon’s 

movement into and within the United 

States; and 

• The likelihood of survival and 

spread of the taxon within each 

pathway. 

Helpful information for a taxon to be 

evaluated as a host of a quarantine pest 

would include: 

• If the pest is a pathogen, whether it 

could be introduced and established in 

the United States through the 

importation of seed or other types of 

propagative material; 

• The pest’s habitat suitability in the 

United States (predicted ecological 

range); 

• Whether the pest is present in the 

United States, and if so, where; 

• If the pest is present in the United 

States, information regarding any 

official control efforts, 

• Means by which the pest infests 

plants; 

• The host range of the pest; 

• The plant parts the pest infests; 

• Potential economic impacts (e.g., 

potential to reduce crop yields, lower 

commodity values, or cause loss of 

markets for U.S. goods); 

• Potential environmental impacts 

(e.g., impacts on ecosystem processes, 

natural community composition or 

structure, human health, recreation 

patterns, property values, or use of 

chemicals to control the pest); 

• Other potential pathways for the 

pest’s movement into and within the 

United States; and 

• The likelihood of survival and 

spread of the pest within each pathway. 

For each type of suggestion, we would 

need references to support any 

information supplied, and the contact 

information of the person who made the 

suggestion, so we could follow up if 

necessary. 

Information To Be Made Available on 

the Internet 

Several commenters encouraged us to 

make various information and 

documents from the NAPPRA process 

available on the Internet. One 

commenter generally stated that making 

NAPPRA information available in 

public media such as Web sites would 

help disseminate information and could 

be used to encourage input from other 

stakeholders. Another stated that we 

should make available documentation 

that includes the justification for 

placing a plant in the NAPPRA category 

for every item. 

We agree with these commenters. We 

will provide public notice of every 

determination we make that a plant 

taxon should be added to the NAPPRA 

category, along with a data sheet that 

details the scientific evidence that we 

evaluated in making our determination, 

including references for that scientific 

evidence. The plants for planting Web 

site mentioned earlier has a great deal 

of background information on our 

regulation of plants for planting. We 

also make the Plants for Planting 

Manual, which summarizes all of 

APHIS’ prohibitions and restrictions on 

the importation of plants for planting, 

available on the Web at http:// 

www.aphis.usda.gov/import_export/ 

plants/manuals/online_manuals.shtml. 

(This manual was known as the Nursery 

Stock Manual; its name has been 

changed to reflect the changes we are 

making to the regulations in this final 

rule.) 

In addition to the information 

available on the Internet, we suggest 

that anyone interested in receiving 

notifications on NAPPRA-related issues 

join the PPQ Stakeholder Registry, at 

https://web01.aphis.usda.gov/ 

PPQStakeWeb2.nsf. People who sign up 

for the Stakeholder Registry and select 

the category ‘‘PI—Plants’’ will receive 

e-mail notifications whenever we 

publish a notice adding a taxon to the 

NAPPRA category, as well as 

notifications regarding other aspects of 

the plants for planting regulations. We 

encourage interested parties to sign up 

for the Stakeholder Registry. 

Specific types of information that 

commenters requested that we make 

publicly available are addressed below. 

Several commenters asked that we 

publicly disclose the taxa that we 

evaluate for addition to the NAPPRA 

category and that we provide details on 

all assessments completed, whether a 

taxon is added to the NAPPRA category 

or not. 

As discussed, we will publish notices 

in the Federal Register for each taxon 

that we evaluate and determine to be a 

quarantine pest or a host of a quarantine 

pest, meaning that publicly disclosing 

through other means the fact that those 

taxa are being evaluated is unnecessary. 

Similarly, when we determine that we 

should add a plant taxon to the 

NAPPRA list, we will provide a data 

sheet that details the scientific evidence 

we evaluated in making our 

determination. Thus, public disclosure 

of evaluated taxa and the details of our 

evaluation is part of the process for taxa 

that are evaluated and found to be 

quarantine pests or hosts of quarantine 

pests. 

Publicly listing taxa that have been 

evaluated for addition to the NAPPRA 

category and found not to be quarantine 

pests or hosts of quarantine pests, and 

providing details regarding those 

evaluations, could create an incorrect 

impression that APHIS has conducted a 

comprehensive evaluation of the risk 

posed by these taxa and found that they 

can be safely imported under the 

general restrictions of the plants for 

planting regulations. Rather, we would 

have evaluated as little as one item of 

scientific evidence and found that it did 

not indicate that the importation of the 

taxon poses a risk of introducing a 

quarantine pest. Such evaluations are 

contingent on the data available when 

the analysis is conducted. New 

scientific evidence might lead us to add 

to the NAPPRA category a taxon that we 

had previously evaluated and found not 

to be a NAPPRA candidate, which could 

create public confusion if we had 

recorded our earlier evaluation on a 

Web site and members of the public had 

interpreted that to mean that 

importation of the taxon was safe. We 

would only make the statement that a 

plant taxon’s importation is safe after 

completion of a PRA in order to 

comprehensively examine the risk 

associated with that taxon. 

Listing taxa that we have evaluated 

and determined not to be hosts of 

quarantine pests, in particular, would be 

cumbersome. Because a single taxon of 

plants for planting can potentially be a 

host for multiple plant pests, some of 

which may be quarantine pests, a list 

showing which plants have been 

evaluated for various pests would 

quickly become difficult both to update 

and to read. A list showing that a taxon 

was evaluated as a host of several 

quarantine pests would give an even 

stronger impression that APHIS had 

completed an overall evaluation of the 

risk posed by the taxon, which would 

not be true unless we had completed a 

PRA; in that case, the importation of the 

taxon would be addressed through the 

rulemaking process, if necessary, rather 

than through the NAPPRA process. 

In addition, documenting our 

evaluation process and making the 

details of our evaluations publicly 

available would be resource-intensive. 

The evaluation of a taxon that we decide 

not to list could consist of (for example) 

reading a report on a pest’s damage 

overseas and then finding that the pest 

is also present in the United States and 

not under official control, meaning that 

it would not be a quarantine pest and 

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thus not a candidate for addition to the 

NAPPRA category. Another example 

would be noting the inclusion of a taxon 

on a State or local weed list and then 

not finding any further references to 

substantiate the damage it causes, or 

finding that the taxon is not under 

official control. This process is 

somewhat fluid and not amenable to 

documentation in the way that a 

comprehensive, systematic PRA is. 

Documenting this process would also 

require resources that would be better 

spent evaluating taxa of plants for 

planting to determine whether they are 

NAPPRA candidates. 

In addition, the list of taxa that could 

be evaluated for inclusion in the 

NAPPRA category is enormous, 

particularly as we are explicitly 

welcoming public suggestions for 

additions to the NAPPRA category. It 

would take a great deal of resources to 

document our evaluations of taxa that 

we determine are not NAPPRA 

candidates at a particular time. 

For these reasons, we do not plan to 

make publicly available the taxa that we 

evaluate and the details of our 

evaluations when those evaluations do 

not result in a determination that the 

taxon should be added to the NAPPRA 

category. 

Five commenters asked that we 

provide a public timetable for 

completion of evaluations. Four 

commenters stated that members of the 

public should be guaranteed a timely 

response when submitting suggestions 

for taxa to evaluate for the NAPPRA 

category. 

We will respond to public suggestions 

to confirm that we have received them. 

We will strive to complete all 

evaluations of taxa identified as 

NAPPRA candidates in a timely 

manner. However, providing a specific 

timetable for completion of evaluations 

would be difficult. As discussed earlier, 

we are accepting public suggestions for 

NAPPRA candidates. Our evaluation of 

those suggestions will be dependent to 

some extent on the quality and quantity 

of scientific evidence submitted by the 

public. In addition, the evaluation of 

any taxon may take more or less time 

depending on the availability of 

scientific information and whether any 

questions about the scientific 

information need to be resolved. 

Scientific Evidence To Be Used To Add 

Taxa to the NAPPRA Category 

In the Background section of the 

proposed rule, we stated that we 

planned to use scientific evidence to 

determine whether to add a taxon of 

plants for planting to the NAPPRA 

category. 

One commenter stated that taxa 

should be determined to be quarantine 

pest plants only on the basis of 

scientific evidence, not guessing or 

anecdotal evidence. One commenter 

asked generally whether we would base 

our decisionmaking on more than one 

scientific source. One commenter stated 

that data on invasiveness should be 

based upon more than one source or 

data from more than one country, and 

those countries should have 

corresponding climatic patterns in large 

regions of the United States. One 

commenter recommended that reports 

from professional societies be tested by 

means of a high scientific standard. 

It is important to note that we will not 

automatically determine that a taxon 

should be added to the NAPPRA 

category simply because some scientific 

evidence indicates that the taxon is a 

quarantine pest or a host of a quarantine 

pest. In each individual case, we will 

evaluate the evidence in order to ensure 

that it provides sound scientific 

evidence that a taxon should be added 

to the NAPPRA category. In some cases, 

we might consult multiple sources in an 

effort to determine whether scientific 

evidence we have received is valid; for 

example, when presented with an 

anecdotal report that a pest damages 

agricultural or environmental resources, 

we would seek corroboration in other 

scientific literature. However, some 

single sources of evidence would be 

sufficient—for example, reports 

published in peer-reviewed journals of 

a quarantine pest infesting a taxon of 

plants for planting in field conditions. 

With regard to taxa of plants for 

planting that are quarantine pests, we 

would be certain to consider data from 

one source and one country if the data 

were rigorous and published in a peerreviewed journal. We would not 

consider such data if they were obtained 

in a climatic region that did not 

correspond to one of the climatic 

regions in the United States, although it 

is worth noting that the United States 

has a wide range of climate and 

ecological zones, including some found 

only in Hawaii. 

In general, with regard to the 

scientific evidence we would use to 

determine that a taxon is a quarantine 

pest or a host of a quarantine pest, it is 

important to remember that, for each 

taxon to be added to NAPPRA, we will 

publish a notice in the Federal Register 

that makes available a data sheet that 

details the scientific evidence that we 

evaluated in making our determination, 

including references for that scientific 

evidence. We will also solicit public 

comment on our determination. 

Members of the public will have this 

opportunity to comment on the 

scientific evidence we used. If 

comments present information that 

leads us to determine that importation 

of the taxon does not pose a risk of 

introducing a quarantine pest into the 

United States, APHIS will not add the 

taxon to the NAPPRA list. 

Scientific Evidence To Be Used To Make 

the Determination That a Taxon of 

Plants for Planting Is a Quarantine Pest 

In the proposed rule, we described 

several specific sources of scientific 

evidence that we anticipate using to 

make the determination that a taxon of 

plants for planting is a potential 

quarantine pest that should be added to 

the NAPPRA list. 

Three commenters recommended that 

we use a taxon’s history of invasiveness 

as evidence for placing a taxon on the 

NAPPRA list. One commenter stated 

that, consistently, one of the best 

predictors of invasiveness (weediness) 

has been invasiveness in other countries 

of similar habitats. Although it is true 

that what is invasive in one country is 

not guaranteed to invade another, this is 

an excellent source of early warning. 

From reading the proposed rule, the 

commenter stated, it was not clear 

whether this would carry much weight 

in implying risk. The commenter 

encouraged us to use other countries’ 

lists of invaders as scientific evidence. 

One commenter cited several studies 

supporting the assertion that the 

invasiveness of a species anywhere 

outside its native range is the most 

accurate predictor of likely invasion in 

a new range. The third commenter 

stated that statistical analysis has shown 

that, if a species has caused damage in 

one region it is more likely to cause 

damage in another region than species 

not known to have caused damage. 

A fourth commenter stated that the 

NAPPRA category should be restricted 

to plants that have already 

demonstrated the capacity to invade 

stable natural environments. The 

commenter stated that when the habitats 

of native plants are eradicated by 

human intervention, even as we do not 

expect the native plants to adapt to the 

radically changed environment, neither 

should we expect a blank vacuum to 

remain. 

It is important to mention again that 

the spread of a plant in a new habitat, 

which is commonly characterized as 

‘‘invasiveness’’ (or ‘‘weediness’’), would 

not be sufficient by itself to cause us to 

determine that a plant is a quarantine 

pest; we would need evidence of the 

potential economic importance of a 

taxon of plants for planting, from the 

damage it has caused to agricultural and 

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31186 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

11Parker, C., Caton, B.P., and Fowler, L. 2007. 

Ranking non-indigenous weed species by their 

potential to invade the United States: The Parker 

model. Weed Science 55:386–397. 

12For more information about the Hawaii-Pacific 

Weed Risk Assessment, go to http:// 

www.botany.hawaii.edu/faculty/daehler/wra/. 

environmental resources, in order to 

determine that it could qualify as a 

quarantine pest. 

Because of that, evidence of the 

damage a taxon of plants for planting 

has caused in other habitats would be 

the best evidence for determining that 

the taxon could be a quarantine pest for 

the United States. Therefore, to the 

extent that they discuss damage caused 

by plant taxa, we agree with the first 

three of these commenters. The sources 

of information described in the proposal 

are intended to provide us with 

evidence regarding taxa of plants for 

planting that have caused damage in 

other areas and that would be 

potentially economically important 

within the United States. 

We also agree that evidence of damage 

caused in a relatively undisturbed 

natural environment could carry more 

weight in determining that a taxon is a 

quarantine pest than damage caused in 

previously disturbed environments. 

However, we might consider the latter 

in the absence of the former, depending 

on the details of the damage caused. In 

addition, it is important to note that 

agricultural environments are disturbed 

from their natural state, but if a taxon 

of plants for planting causes damage to 

agricultural resources, it could be 

designated as a quarantine pest. 

In response to the first commenter, 

the proposed rule listed national and 

international pest alerts, reports, and 

quarantine lists among the sources of 

scientific evidence we would use in 

evaluating taxa for addition to the 

NAPPRA category, and we still plan to 

use those sources. We also listed as 

potential sources of scientific evidence 

reports from regional plant protection 

organizations, such as the North 

American Plant Protection Organization 

and the European and Mediterranean 

Plant Protection Organization, and from 

professional societies such as the Weed 

Science Society of America (WSSA). 

Two commenters recommended that 

we use information from State and local 

invasive species councils as scientific 

evidence. Another commenter stated 

that each State has prominent native 

plant organizations that may prove 

useful in providing information on 

various imported plant taxa. 

A fourth commenter stated that the 

standard of evidence used for invasive 

plant species lists is apparently that 

‘‘someone, somewhere, claims that the 

species is present outside its ‘natural’ 

range.’’ The commenter stated that such 

lists are based entirely on anecdote and 

that not one of the lists includes an 

objective definition of ‘‘invasive’’ or 

objective criteria for determining that a 

plant is ‘‘invasive.’’ The commenter 

stated that such lists include many 

species that are actually endangered in 

their home ranges, calling into question 

the accuracy of the designation of a 

plant on such a list as invasive. The 

commenter also stated that invasive 

plant councils are corrupted by 

herbicide industry representatives, 

funding, and advertising. The 

commenter stated that such lists have 

no place in any assessment of 

invasiveness. 

We will evaluate each type of 

evidence we have available to us 

regarding the potential a taxon has to 

become a quarantine pest in order to 

ensure that it provides sound scientific 

evidence that a taxon should be added 

to the NAPPRA category. We will 

certainly take into account information 

from State and local invasive species 

councils and from native plant 

organizations about the damage caused 

by various taxa. At the same time, given 

such information, we would likely seek 

to corroborate it with other scientific 

evidence describing the damage the 

taxon causes before adding it to the 

NAPPRA category. (It is also worth 

noting that many taxa of concern for 

those groups may not be under official 

control and thus would not be 

considered quarantine pests.) If a list of 

invasive plants includes a plant that is 

endangered in its home range, that 

might indicate that the list was not very 

rigorous, and we would likely conclude 

that it is not useful as a source for 

information about potential quarantine 

pest plants. 

On the other hand, if a list of plant 

taxa that could cause damage of 

economic importance to the United 

States was constructed with sufficient 

rigor, we would use it as a source of 

NAPPRA candidates. The WSSA list is 

a good example.11

In the proposed rule, we stated that 

we anticipate using published 

international weed references as sources 

of scientific evidence to make the 

determination that a taxon of plants for 

planting is a quarantine pest. We cited 

two examples: Invasive Plant Species of 

the World: A Reference Guide to 

Environmental Weeds (Weber, Ewald. 

2003; CABI Publishing, Cambridge, MA) 

and Noxious Weeds of Australia (W.T. 

Parsons and E.G. Cuthbertson, 1992; 

Inkata Press, Melbourne and Sydney, 

Australia). 

One commenter stated that weed 

references are of notoriously poor 

scientific quality and primarily based on 

anecdote; many species are included on 

the basis of a single person’s say-so. 

This commenter stated that these lists 

are produced by persons with economic 

self-interest in weed control and are 

padded with many species included 

simply to create the impression of a 

large problem. The commenter stated 

that, in these lists, there is no rigorous 

operational definition of terms and no 

objective criteria for measuring 

‘‘weediness.’’ The commenter also 

stated that in no case do these weed lists 

give any consideration to the underlying 

causes of the weed infestation; 

disturbance, poor agricultural practices, 

and environmental degradation are most 

often the cause of ‘‘infestation,’’ yet 

these are ignored. For example, the 

commenter stated, one may overgraze a 

meadow until the only species left is 

one that is unpalatable to livestock, after 

which that species is classified as a 

‘‘weed.’’ 

We will not add taxa of plants for 

planting to NAPPRA based on whether 

they are perceived to be weeds, but 

based on their status as a quarantine 

pest. This requires scientific evidence 

that the plants could cause 

economically important harm to U.S. 

agricultural and environmental 

resources, as well as requiring that the 

taxa are either not present in the United 

States or present but under official 

control. 

Whenever we would use any weed 

reference as a source of scientific 

evidence, we would check the original 

references cited to substantiate the 

claim and consider the circumstances in 

which the taxon caused damage. If the 

reference was anecdotal, we would seek 

additional data for corroboration before 

making a determination that a taxon is 

a quarantine pest. As noted, evidence 

that a taxon causes damage in relatively 

undisturbed natural environments could 

carry more weight than evidence that a 

taxon causes damage in disturbed 

environments. 

We also stated in the proposed rule 

that we anticipate using scientific 

screening systems and predictive 

models, such as the WSSA’s 

prioritization model, that seek to 

identify weeds of global significance 

that pose a threat to the United States, 

as sources of scientific evidence to make 

the determination that a taxon of plants 

for planting is a quarantine pest. 

One commenter asked us to accept the 

Hawaii-Pacific Weed Risk Assessment 12

screening system as a legitimate source 

of evidence for potential quarantine 

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13The foundation document is available on the 

Regulations.gov Web site at the address listed in 

footnote 1. 

pests. The commenter stated that this 

science-based tool has been used 

successfully in Hawaii for evaluating 

potential invasiveness of alien plant 

species for many years. 

We agree that the Hawaii-Pacific 

Weed Risk Assessment can serve as a 

useful source of NAPPRA candidate 

taxa. In addition to considering the 

invasiveness of a taxon, the system 

considers whether a taxon will have 

‘‘significant ecological or economic 

impacts,’’ and can thus help identify 

quarantine pest plants. We will consider 

taxa that system identifies as high risk 

in the same way we will consider taxa 

from other screening systems. 

A few commenters questioned the 

possibility of predicting whether a plant 

taxon will be invasive in a new habitat. 

Three commenters stated that there is 

no possible risk assessment tool that can 

be developed to test plant invasiveness 

in every habitat in every ecological 

region of the country. Under this rule, 

one of these commenters stated, we 

would be without many major 

horticultural crops, such as impatiens 

and lantana, because they would not 

pass a screening exam. Another of these 

commenters stated that it is very easy to 

predict that a species will not become 

a weed, and there are numerous 

horticultural societies that devote large 

amounts of personal time to discussing 

methods of cultivation and propagation 

of numerous genera. 

As discussed earlier in this document, 

we will not add plants to NAPPRA 

solely because those plants are not in 

cultivation within the United States. 

When we begin implementing the 

NAPPRA category by adding taxa to it, 

the importation of most plants for 

planting will still be subject only to the 

general requirements for a phytosanitary 

certificate, a permit, and inspection at a 

plant inspection station. We will only 

restrict the importation of a taxon when 

scientific evidence indicates that the 

taxon is a quarantine pest or a host of 

a quarantine pest. As noted, for 

quarantine pests, the primary evidence 

necessary to make that determination 

for taxa not present in the United States 

would be documentation of damage 

caused by the taxon. When we publish 

a notice in the Federal Register 

announcing our determination that a 

taxon of plants for planting is a 

quarantine pest, commenters will have 

an opportunity to comment on the 

scientific evidence we used as a basis 

for our determination. 

It is not necessary for a model to 

determine whether a taxon of plants for 

planting would be a quarantine pest in 

every area of the United States in order 

for us to add that taxon to the NAPPRA 

category. Evidence that the taxon would 

be a quarantine pest in one area would 

be sufficient to take action to address 

the risk associated with the taxon’s 

importation. Any restrictions on 

movement within the United States that 

could prevent the taxon from being a 

quarantine pest would be addressed in 

the PRA conducted to remove the taxon 

from the NAPPRA list. 

One commenter provided a detailed 

examination of the potential problems 

associated with predicting invasiveness 

using a model. The commenter stated: 

• Modeling the natural environment 

is difficult, given our limited knowledge 

about the species present in the world, 

the ecology of these species, and how 

they interact. 

• The intrinsic properties of 

individual species are not predictive, 

and adaptive evolution means that 

species change over time. 

• History of invasiveness is not useful 

as a predictor, since some species that 

are invasive in one place are not 

invasive in others, and the success of an 

invasion is dependent on extrinsic 

forces as well as the intrinsic 

characteristics of a species. 

• Time lags between introduction and 

establishment or spread make it difficult 

to establish how invasion has occurred, 

and the time lag often obscures climatic 

or anthropogenic disturbances that 

enabled the invasion. 

• Predictive models for assessing 

introduced species have data problems; 

fail to factor in anthropogenic 

disturbance, introduction effort, 

adequate lag time, and suitability of 

habitat; and fail to operationally define 

‘‘invasion.’’ 

The commenter stated that the use of 

models predicting invasiveness to add 

taxa to the NAPPRA category will 

hamstring scientific research and 

valuable conservation efforts. 

As noted earlier, determining that a 

plant taxon is invasive is not the same 

as determining whether it is a 

quarantine pest. The spread of a plant 

in a new habitat, which is commonly 

characterized as ‘‘invasiveness,’’ would 

not be sufficient by itself to cause us to 

determine that a plant is a quarantine 

pest; we would need evidence of its 

potential economic importance, from 

the damage it has caused. 

We agree with the commenter that 

uncertainty still exists regarding 

whether a species that causes damage in 

one area will cause damage in another. 

However, as demonstrated in the risk 

document, ‘‘Foundation Document 

Demonstrating the Risk Basis for 

Establishing the Regulatory Category 

’Not Authorized Pending Pest Risk 

Analysis’ (NAPPRA) Associated with 

the Importation of Plants for Planting,’’ 

that accompanied the proposed rule,13

the risk associated with the importation 

of plants for planting is higher than that 

of other articles whose importation is 

regulated by APHIS. Accordingly, we 

proposed to implement the NAPPRA 

category as part of an effort to provide 

a more appropriate level of protection 

against the risks associated with the 

importation of plants for planting. 

Although the level of risk associated 

with any individual plant taxon that has 

demonstrated the ability to cause 

damage outside its native range may be 

more or less uncertain, such plants are 

more likely to be quarantine pests than 

plants that do not have such a history. 

Therefore, we will use the NAPPRA 

category to prevent the importation of 

plants with a history of damaging 

agricultural and environmental 

resources until a PRA can be completed. 

It should be noted that the WSSA 

model that we plan to use incorporates 

the damage done by the taxon in its 

evaluation. 

Several commenters urged us to go 

further in our use of scientific screening 

systems and predictive models and 

screen all taxa of plants for planting 

imported into the United States for their 

damaging characteristics. Some of these 

commenters stated that screening of all 

unprecedented non-native taxa 

proposed for importation into the 

United States should be USDA’s 

responsibility and ultimate goal. Some 

commenters stated that USDA should 

declare an explicit timetable for 

implementation of a screening model. 

One commenter stated that, in the long 

term, all new species imported to the 

U.S. should undergo a screening process 

rather than just the NAPPRA-listed 

species. This commenter stated that, as 

the vast majority of introduced species 

are not invasive, this approach would 

safeguard U.S. resources with negligible 

economic impacts. 

Many of these commenters mentioned 

the Australian weed risk assessment 

(AWRA) system as a model. This system 

starts from a baseline of prohibiting 

importation of plants for planting. 

Plants for planting are rated via a 

scoring system based on the 

characteristics of the plants. Importation 

is allowed if the AWRA system shows 

the taxa to be safe to import, and 

prohibited if the AWRA system 

indicates that they should be rejected. 

The AWRA can also result in a rating of 

‘‘evaluate,’’ in which case further 

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14Reichard, S.H., and Hamilton, W.H. 1997. 

Predicting invasions of woody plants introduced 

into North America. Conservation Biology 11:193– 

203. 

evaluation must be conducted before 

importation may be allowed. 

Another commenter supported the 

use of the WSSA system to identify 

noxious weed threats, but noted that the 

proposed rule referred to various weed 

screening systems used for various 

purposes. This commenter asked that 

APHIS clarify that the NAPPRA 

proposal does not, and is not intended 

to, establish mandatory pre-importation 

screening for weediness. The 

commenter also recommended that 

APHIS clarify that, while APHIS may 

consider information presented as a 

result of screening or prioritization 

models developed elsewhere for various 

purposes, the NAPPRA rule does not 

constitute establishment of a weediness 

screening methodology or a de facto 

acceptance of information resulting 

from models developed and 

implemented elsewhere for various 

purposes. 

The last commenter is correct. The 

plants for planting regulations currently 

allow the importation of all taxa of 

plants for planting subject to general 

restrictions, unless specifically 

restricted or prohibited. We did not 

propose to change this. Rather, the 

NAPPRA category will allow us to 

restrict the importation of plants for 

planting that are quarantine pests or 

hosts of quarantine pests in a timely 

manner. We plan to use the information 

from the WSSA screening system to 

identify taxa for evaluation as 

quarantine pests, not to determine 

which taxa are safe to import and to 

exclude all other taxa from importation. 

The AWRA proceeds from the 

Australian regulatory system, under 

which all importation of plants for 

planting is prohibited unless 

specifically authorized. Thus, it is not 

directly applicable to the U.S. regulatory 

situation. 

Some commenters stated that there is 

a full WRA approach under 

development by the Plant Epidemiology 

and Risk Analysis Laboratory of PPQ’s 

Center for Plant Health Science and 

Technology. The commenters stated that 

this approach is based on the AWRA 

and is being compared for accuracy 

against that standard. As long as the 

methodology developed is as or more 

accurate than the Australian 

methodology, the commenters 

expressed support for the use of this 

system to determine whether species 

placed in the NAPPRA category will be 

rejected and placed on the noxious 

weed list or permitted for import 

(possibly with conditions), assuming 

that the tool is consistently applied 

under the conditions that generated the 

accuracy assessment. 

The commenters are correct that we 

are developing a new WRA 

methodology. The new methodology is 

based on the style and general approach 

of the AWRA, but the structure of the 

assessment and the means used to 

evaluate risk are not based on those in 

the AWRA. The new methodology also 

takes into account lessons learned from 

other systems like the one in use in New 

Zealand and the Hawaii-Pacific Weed 

Risk Assessment tool mentioned earlier. 

It is also important to clarify that we 

do not plan to employ our WRA 

methodology in the same way Australia 

does; as the commenters describe, the 

WRA methodology we are developing 

would initially be used to determine 

whether taxa that have been added to 

the NAPPRA list can be imported safely, 

or whether they need to be added to the 

list of noxious weeds in 7 CFR part 360. 

(If the WRA performed on a taxon of 

plants for planting that was added to the 

NAPPRA category as quarantine pests 

determines that it does not need to be 

added to the noxious weed list, we 

would conduct a PRA to determine 

whether there are any quarantine pests 

for which it could serve as a host.) 

When we have finished our 

development work on this new WRA 

methodology, we plan to have the 

methodology published in a peerreviewed journal, taking into account 

the opinions of the peer reviewers. We 

will make the methodology available to 

interested parties as well. 

One commenter stated that, in 

developing and applying the risk 

analysis, it is critical that a lack of 

evidence of risk is not interpreted as 

evidence of a lack of risk. In other 

words, the commenter stated, if not 

enough is known to evaluate the 

answers to several of the risk analysis 

questions, the default assumption 

should be that the risk exists in this 

taxon. The Australian and some other 

assessment systems have this built in by 

requiring a minimum number of 

questions be answered for an 

assessment to be valid. If the default 

assumption in the absence of evidence 

is that a species does not possess the 

risk trait in question, a serious problem 

will result. This would perversely 

encourage the importation of the species 

about which we know the least and are 

the least prepared to evaluate and 

respond to the risks. The commenter 

stated that if the default is to assume 

safety (as is the current case in what the 

commenter characterized as the lax 

regulatory environment), it creates 

incentives for plant importers to seek 

out species that are too little known to 

be properly evaluated and the risk to the 

stakeholders is not abated by these 

rules. 

By ‘‘the risk analysis,’’ we assume the 

commenter means the new WRA 

methodology we are developing. (The 

current WRA guidelines do not have a 

series of questions, but rather assess 

various aspects of a plant taxon’s 

potential impact in the United States.) If 

this assumption is correct, we will take 

the commenter’s advice into account as 

we develop our new WRA methodology. 

If we determine that we do not have 

enough evidence to assess certain 

characteristics of a taxon, that would 

factor into the uncertainty of the results 

of the WRA; high levels of uncertainty 

would likely result in keeping a taxon 

on the NAPPRA list. 

In the proposed rule, we stated that 

we would consider using other work 

that is being done in the area of 

scientific screening systems and 

predictive models as scientific evidence 

in determining whether a taxon of 

plants for planting is a quarantine pest. 

We mentioned that several university 

scientists are also studying invasiveness 

prediction, and some have published 

articles on various models. In a footnote, 

we cited ‘‘Predicting Invasions of 

Woody Plants in North America’’ 

(Reichard and Hamilton, 1997) 14 as an 

example. 

One commenter stated that the 

method described in Reichard and 

Hamilton (1997) yields an unacceptable 

rate of false positives and considers 

mere establishment to be ‘‘invasion.’’ 

We cited the article in question as an 

example of work being done in the area, 

in the context of stating that we would 

consider using other scientific screening 

systems and predictive models. The 

commenter’s concerns provide useful 

information in determining whether and 

how to use the results of the method 

presented in Reichard and Hamilton 

(1997), and we will consider it as we 

implement the NAPPRA category. 

The risk document that accompanied 

the proposed rule analyzed current 

trends in the importation of plants for 

planting and the general risks associated 

with plants for planting. In this 

document, Appendix 3 listed imported 

plants that are invasive in the United 

States. 

One commenter expressed concern 

regarding this list, indicating that it 

should not be representative of the level 

of stringency to be applied to criteria for 

inclusion in the NAPPRA category. The 

commenter stated that Appendix 3 

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appears to be a careless compilation of 

wish lists from organizational Web sites 

and unscientific agenda-pushers with 

far too much reliance on anecdotal 

material. The commenter stated that 

Appendix 3 includes plants that have 

merely escaped cultivation and occur 

only occasionally in niches opened by 

human intervention. The commenter 

stated that Appendix 3 also contains 

plants that are included in the APHIS 

Nursery Stock Manual for plant imports, 

indicating that they are either not 

already present here or present and not 

being controlled, and therefore are not 

invasive in the United States. 

We did not intend the list in 

Appendix 3 to be read as a list of taxa 

that would potentially be added to the 

NAPPRA list. The list was simply one 

piece of evidence illustrating the 

potential damage associated with the 

pathway of imported plants for planting; 

it was intended to be taken in the 

context of assessing the overall risk 

associated with the pathway, which was 

the goal of the foundation document. 

We would need to verify that the 

damage a taxon causes is economically 

important and that the plant taxon is 

either not present in or under official 

control within the United States before 

we would add a taxon to the NAPPRA 

category. 

Scientific Evidence To Be Used To Make 

the Determination That a Taxon of 

Plants for Planting Is a Host of a 

Quarantine Pest 

We stated in the proposed rule that, 

in order to determine that a taxon of 

plants for planting is a potential host of 

a quarantine pest, the following criteria 

would need to be fulfilled: 

1. The plant pest in question would 

have to be determined to be a 

quarantine pest, according to the 

definition of quarantine pest that we are 

proposing to add to the regulations; and 

2. The taxon of plants for planting 

would have to be determined to be a 

potential host of that quarantine pest. 

However, reports of the host status of a 

taxon of plants for planting that are 

based on the taxon’s role as a laboratory 

or experimental host may be discounted 

if we determine that they are not 

relevant to the actual conditions under 

which the taxon would be grown and 

imported. 

One commenter stated that the phrase 

‘‘potential host of a quarantine pest’’ is 

vague and overly broad, stating that 

virtually any plant could be included. 

The phrase ‘‘potential host of a 

quarantine pest’’ was intended to 

indicate that we have not conducted a 

comprehensive PRA reviewing the 

available evidence regarding the risk 

associated with a taxon of plants for 

planting, but rather have acted on 

evidence indicating a risk. However, we 

agree that the term ‘‘potential host of a 

quarantine pest,’’ as well as the term 

‘‘potential quarantine pest,’’ is 

unnecessarily vague. The action we are 

taking in the NAPPRA category—not 

authorizing the importation of taxa of 

plants for planting due to the risk they 

pose—is commensurate with a 

determination that these taxa are 

quarantine pests or hosts of quarantine 

pests; as the commenter states, most 

plants are technically ‘‘potential’’ hosts 

of quarantine pests. Therefore, we have 

changed the proposed regulatory text to 

refer to determining that taxa are 

quarantine pests or hosts of quarantine 

pests, rather than potential quarantine 

pests or potential hosts of quarantine 

pests, and to refer to taxa that pose a 

risk rather than to taxa that may pose a 

risk or pose a potential risk. 

One commenter made several 

recommendations with regard to the 

determination of host status. The 

commenter asked that we clarify, or at 

least provide examples of, the 

conditions we consider to be relevant 

versus those we consider not to be 

relevant to the actual conditions under 

which the taxon would be grown and 

imported. The commenter stated that 

these will not be simple questions to 

answer in practical terms. For example, 

it seems evident that a pathogen known 

to be root-borne but not to infect other 

portions of the plant would not pose a 

threat if imports are limited to unrooted 

cuttings, but many pathogens are poorly 

known, which makes it difficult to 

evaluate whether they are truly limited 

to particular plant parts. The commenter 

stated that, in the case of P. ramorum, 

knowledge of the plant parts infected 

has grown slowly and often as the result 

of experience with nursery 

infestations—that is, too late for 

effective prevention. The commenter 

suggested that, at a minimum, we 

include in NAPPRA those laboratory 

hosts that co-occur with natural hosts in 

areas suspected of harboring the 

pathogen, including nurseries. 

We consider laboratory conditions to 

be relevant if they are similar in pest 

density and environmental conditions 

to the natural conditions under which a 

taxon would be exposed to a pest. Often, 

laboratory experiments to determine 

host status use excessive amounts of 

inoculum or numbers of pests that a 

plant would rarely encounter in natural 

conditions. Laboratory experiments 

sometimes also hold environmental 

conditions at levels conducive to 

infection or infestation for long periods 

of time in order to see whether infection 

or infestation is theoretically possible, 

when those conditions would not 

prevail for such a long time in nature. 

A taxon of plants for planting that was 

shown to be a host in such conditions, 

or other conditions that depart 

substantially from what could be 

expected to occur in the conditions 

under which the taxon would be grown 

and imported, would not be considered 

to be a host of a quarantine pest for the 

purposes of the NAPPRA category. 

The example of P. ramorum is an 

instructive one. If the NAPPRA category 

had been available to us when initial 

scientific evidence was being developed 

regarding P. ramorum, we would likely 

have added all plant parts, except seed, 

of any host of P. ramorum to the 

NAPPRA category, given the fact that 

Phytophthora spp. cause disease in 

stems, roots, and leaves, depending on 

the infected plant species and their 

inoculum, and given the fact that its 

inoculum is soil- and water-borne, and 

possibly airborne. These facts indicate 

that P. ramorum would infect host 

species in the natural environment. (It 

should be noted that adding any plant 

to NAPPRA as a host of a quarantine 

pest would prevent the importation of 

the entire plant, except seed, unless 

seed is specified as not authorized.) 

The commenter also asked about the 

level of proof that APHIS will require in 

determining that a plant taxon is a 

‘‘natural’’ host. Again in the case of P. 

ramorum, APHIS initially insisted that 

Koch’s postulates be completed and 

accepted by the agency before 

recognizing a plant taxon to be a host of 

that pathogen. This approach resulted in 

continued movement of P. ramorum on 

hosts that had been identified by 

symptoms or other methods but for 

which this often-difficult test had not 

yet been completed. The commenter 

suggested that APHIS recognize such 

suspected hosts, perhaps calling them 

‘‘associated’’ hosts as it does with P. 

ramorum; and include them in the 

NAPPRA category at least until further 

study can clarify their relationship to 

the pathogen under consideration. 

Our intention is to recognize plant 

taxa as hosts if they are observed and 

determined to be hosts in the 

environment in which they are growing. 

The ‘‘associated hosts’’ listed in our 

domestic regulations to prevent the 

spread of P. ramorum within the United 

States (in 7 CFR 301.92–2) have not 

been confirmed as hosts through 

completion of Koch’s postulates, but 

they are all taxa that have been observed 

and determined to be hosts of P. 

ramorum in the environment in which 

they are growing. Therefore, we would 

add such taxa to the NAPPRA category. 

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In general, we will not require 

confirmatory tests such as Koch’s 

postulates to be performed before 

adding a taxon to the NAPPRA category 

as a host of a quarantine pest if the 

taxon has been observed to be a host of 

a quarantine pathogen. 

In the proposed rule, we also 

described several sources of scientific 

evidence that we anticipated using to 

make the determination that a taxon of 

plants for planting is a host of a 

quarantine pest that should be added to 

the NAPPRA category. 

One commenter encouraged us to use 

other countries’ lists of pests and pest 

hosts in this evaluation. 

We agree with this commenter. In the 

proposed rule, we stated that we would 

use national and international pest 

alerts, reports, and quarantine lists as 

sources. 

Another commenter, noting that we 

proposed to use national and 

international pest alerts, reports, and 

quarantine lists as scientific evidence, 

asked how such reports will be 

substantiated prior to adding plant taxa 

to the NAPPRA list. The commenter 

also asked whether the foreign country 

that is implicated will be notified by the 

USDA and given an opportunity to 

verify a report before a plant taxon is 

added to the NAPPRA list. 

If we receive a report of pest presence 

from a foreign NPPO, we would 

consider that report to be sufficient to 

add a taxon to the NAPPRA list, 

assuming the pest met the criteria for 

being designated as a quarantine pest. If 

the report came from another source, we 

would check on who made the report, 

who reviewed the report, and the data 

underlying the report before making a 

determination on whether to add a 

taxon to the NAPPRA list. We would 

reserve the option to contact the affected 

country to get further information, but if 

the data provided sufficient certainty, 

we would not need to do so. Affected 

countries, like other interested parties, 

will have an opportunity to comment on 

the notices we publish announcing our 

determination that a taxon is a host of 

a quarantine pest. 

This commenter also noted we 

proposed to use reports and quarantine 

lists from State and local governments 

as sources. The commenter stated that 

State and local governments are not 

required to meet international standards 

for pest reporting and are not subject to 

the same level of scrutiny as an NPPO. 

We will use reports from State and 

local governments as data on emerging 

quarantine pests; we will make the final 

determination with regard to whether a 

pest is a quarantine pest. In making the 

final determination, we will review the 

standards used to compile the report or 

quarantine list and, if necessary, seek 

additional data for corroboration of the 

damage the pest could cause and 

whether the pest is under official 

control in the United States. 

One commenter encouraged us to use 

information from State exotic plant pest 

councils. 

We agree with the commenter’s 

recommendation. As with reports and 

quarantine lists from State and local 

governments, we would use them as 

potential sources of information on 

potentially damaging pests. However, as 

with other such sources of evidence, we 

would likely seek additional data for 

corroboration of the damage the pest 

could cause and whether the pest is 

under official control in the United 

States. 

General Level of Protection 

We stated in the proposed rule that 

we were proposing to establish the 

NAPPRA category in order to provide a 

more appropriate level of phytosanitary 

protection against the introduction of 

quarantine pests through the 

importation of plants for planting. 

Several commenters asked that we 

articulate a general level of protection 

against the risk of introduction of 

quarantine pests that we would seek to 

achieve through use of the NAPPRA 

category. One commenter also asked 

that we specify the level of uncertainty 

associated with various levels of risk 

that would lead us to action. Another 

asked that we make public our criteria 

for determining that the importation of 

a taxon should be prohibited, allowed 

subject to special restrictions, or 

allowed subject to general requirements, 

and that we take comment on those 

criteria. 

The ultimate standard by which we 

will evaluate taxa for addition to the 

NAPPRA category is whether they are 

quarantine pests or hosts of quarantine 

pests, based on the definition of 

quarantine pest that we are adding to 

the regulations. We will evaluate each 

individual taxon that comes to our 

attention to determine whether it meets 

this criterion. The unique biological 

characteristics of each evaluated taxon 

and, if applicable, the quarantine pests 

associated with it will inform our 

decisions. Therefore, it is not possible 

for us to specify an overall level of 

protection or general criteria that would 

apply to all our decisionmaking. 

Availability of Information Used as a 

Basis for Adding Taxa to the NAPPRA 

Category 

Along with publishing a notice in the 

Federal Register announcing our 

determination that a plant taxon should 

be added to the NAPPRA category, we 

proposed to make available a data sheet 

that would detail the scientific evidence 

that we evaluated in making our 

determination, including references for 

that scientific evidence. 

Two commenters addressed the issue 

of the availability of the scientific 

evidence detailed in the data sheet. One 

stated that all the information used to 

make these decisions must be readily 

available to anyone interested in 

evaluating it. The quality of the 

scientific evidence that supports the 

inclusion of a species into the NAPPRA 

category, and any other category 

restricting importation for that matter, is 

critical. Unfortunately, in the 

commenter’s experience, such evidence 

is often flawed or incomplete. The 

commenter commended the use of 

international databases and peerreviewed articles but cautioned that 

even these should be studied carefully; 

details should not be omitted or 

simplified. Sometimes, the commenter 

noted, the information comes from 

documents that are not readily 

accessible to the public (e.g., in other 

languages, in restricted databases, etc.). 

The commenter stated that being able to 

locate this information easily should 

help maintain transparency in the 

process. 

Another commenter stated that, in 

order for financial stakeholders, such as 

nurseries, greenhouses, retailers, 

forestry operations, seed exchanges, etc., 

to review and comment on the scientific 

evidence regarding a quarantine pest 

plant placed in the NAPPRA category, 

they must have access to the scientific 

evidence referred to in the data sheet. 

The commenter stated that several 

problems arise when trying to review 

evidence in academic journals. 

Academic journals are not free, and it 

can be expensive to access paper copies 

or Web archives. University libraries do 

not always have paper copies of a given 

journal available for review, or complete 

collections of a given journal, and 

sometimes interlibrary loan services are 

not available to allow access. The 

commenter stated that without access to 

academic journals, any academic 

journal evidence used to place a plant 

on the NAPPRA category as a 

quarantine pest plant is effectively 

withheld from the public. 

This commenter stated that electronic 

access to academic journals should be 

granted to financial stakeholders in 

order to provide a review and comment 

process that is fair and open to all 

parties. For example, the USDA could 

provide free electronic access to 

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journals for use by financial 

stakeholders at its Web site. 

The commenter further stated that 

access to electronic journals should not 

be biased in any way toward only those 

journals which emphasize the negative 

aspects of a plant but should also 

include those which show positive 

aspects as well. For instance, journals 

which deal with other aspects of plants 

besides their potential harm, such as 

their use in food, medicinal, culinary, 

utilitarian, ethno-botanical, fiber, biofuel, ornamental horticulture, 

bioremediation, species preservation, 

and other contexts, should be made 

available to stakeholders. The ready 

availability of such information, the 

commenter stated, would ensure that 

some plants are not unduly labeled as 

plant pests when in reality they may 

hold enormous beneficial gains for the 

United States that outweigh their 

negative aspects. 

We agree with the general principle 

that as much information as possible 

regarding plants for planting should be 

freely available. Our data sheets will 

provide specific citations so that 

members of the public can review the 

evidence we use in making our 

determinations. We agree with the first 

commenter that all evidence we use 

should be reviewed carefully, and we 

will take all details of the evidence into 

account. We will welcome comments on 

our interpretation of the scientific 

evidence we use. 

However, we will not be able to 

provide free access to all the evidence 

we use in making the determination that 

a taxon of plants for planting is a 

quarantine pest or a host of a quarantine 

pest. Many journals (and many other 

sources of scientific evidence) have 

copyright restrictions that make it illegal 

for us to simply post the documents 

from which we draw evidence. In such 

cases, we will add taxa to the NAPPRA 

lists based this scientific evidence, even 

though we cannot make that evidence 

available. Not doing so, and thus 

allowing a risk of introducing a 

quarantine pest into the United States to 

go unaddressed, would be contrary to 

our mission to protect U.S. agricultural 

and environmental resources from 

damage caused by quarantine pests. 

We note that there are several factors 

that may mitigate this burden. Most 

journals make abstracts of their articles 

freely available on the Web. In addition, 

while a university may not have paper 

copies of all relevant journals, most 

have access to electronic repositories of 

journal information. Persons with access 

to a university library can sometimes 

access these repositories from their 

homes. 

Finally, it should be noted that we 

will evaluate taxa to determine whether 

they should be added to the NAPPRA 

category based on whether they are 

quarantine pests or hosts of quarantine 

pests, not based on the benefits that may 

be gained by their importation. The 

purpose of establishing the NAPPRA 

category is to allow us to respond more 

quickly to evidence indicating that there 

is a risk associated with the importation 

of specific taxa of plants for planting. 

Evaluating the benefits of importing a 

taxon of plants for planting before 

adding it to the NAPPRA list would 

make it difficult to respond to scientific 

evidence in a timely manner, as it 

would require a comprehensive review 

of the literature of the type described by 

the second commenter. If we conduct a 

PRA and determine that it is appropriate 

to remove a taxon from the NAPPRA 

category, we will consider the taxon’s 

potential benefits as part of any 

subsequent rulemaking to prohibit the 

importation of the taxon, or to allow its 

importation subject to restrictions. 

Restrictions Within the United States 

We proposed that plants for planting 

in the NAPPRA category would not be 

authorized for importation into any part 

of the United States. 

One commenter asked how we would 

handle a taxon of plants that could be 

a weed in one part of the United States 

yet would not be invasive in another 

part, thereby being a potentially 

valuable ornamental plant. 

We will use the NAPPRA category to 

prevent the importation of a taxon of 

plants for planting when scientific 

evidence indicates that the importation 

of that taxon poses a risk of introducing 

a quarantine pest anywhere in the 

United States. The potential benefits of 

the taxon, and any areas within the 

United States where the taxon would 

not be a quarantine pest, would be 

addressed in any subsequent 

rulemaking to remove the taxon from 

the NAPPRA list and prohibit its 

importation or allow its importation 

subject to restrictions. 

Three commenters specifically asked 

about how the NAPPRA category would 

protect Hawaii. One commenter stated 

that Hawaii’s location and extreme 

geography combine to create a large 

variety of ecosystems not found on the 

mainland United States. These 

ecosystems include many species found 

nowhere else on earth, many of which 

are threatened or endangered. 

One commenter specifically stated 

that, in Hawaii, imported plants for 

planting have driven many native 

species to extinction or endangerment, 

leaving the State with the highest 

number of extinctions and highest 

number of listings of endangered 

species among the 50 States. Two 

commenters stated that plants that do 

no harm in the rest of the United States 

may have devastating effects in Hawaii, 

citing as an example the fact that several 

species in the Melastomataceae family 

have become severe pests in Hawaii’s 

forests, requiring millions of dollars 

annually in control costs, but do not 

cause problems in other parts of the 

United States. 

One of the commenters recommended 

that we take Hawaii’s diverse 

ecosystems into account in evaluating 

whether a taxon should be added to the 

NAPPRA category. 

Another commenter suggested that we 

develop a ‘‘NAPPRA Hawaii’’ category 

in which certain plants would not be 

authorized for importation into Hawaii 

or for interstate movement from the 

mainland United States based on the 

risk they pose to Hawaii’s ecosystems 

and agriculture. The commenter stated 

that APHIS’ restrictions on the interstate 

movement of fresh fruit and flowers 

from Hawaii to the United States 

provide a precedent for such a category. 

We plan to take Hawaii’s unique 

circumstances into account when 

evaluating taxa for addition to the 

NAPPRA category. A plant that would 

be a quarantine pest in Hawaii, but 

might not be a quarantine pest 

elsewhere in the United States, would 

be a candidate for addition to the 

NAPPRA category. As discussed earlier, 

we would base any determination to 

add such a plant to the NAPPRA 

category on scientific evidence 

indicating that the plant was a 

quarantine pest, and we would take 

public comment on our determination. 

With regard to the second 

commenter’s suggestion, while the 

importation of plants that pose a threat 

to Hawaii will be not authorized 

through the NAPPRA category, 

restricting the movement of plants for 

planting within the United States is 

outside the scope of the proposed rule. 

The primary means for regulating the 

interstate movement of plants for 

planting that are quarantine pests is the 

noxious weed regulations in 7 CFR part 

360; any plant designated as a noxious 

weed may be moved interstate only with 

a permit. The public is free to petition 

APHIS to designate plants that may be 

quarantine pests in Hawaii as noxious 

weeds; more information on the petition 

process is available at http:// 

www.aphis.usda.gov/plant_health/ 

plant_pest_info/weeds/index.shtml. The 

interstate movement of some nursery 

stock is also restricted in our domestic 

quarantine programs in 7 CFR part 301. 

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We will consider the commenter’s 

suggestion when we develop a 

regulatory mechanism to restrict the 

interstate movement of plants and plant 

products that are not harmful in the 

continental United States but that could 

be harmful in Hawaii’s unique 

environments. 

Notifications 

Several commenters addressed 

notifying the public when we publish 

notices to add taxa to the NAPPRA 

category. One commenter stated that 

PPQ must continue to involve both the 

private and public sectors in 

evaluations. This commenter 

recommended that notifications on the 

PPQ Web site be extremely timely and 

transparent for private industry and 

State and local governmental agencies 

alike. Another commenter 

recommended that PPQ also notify its 

established stakeholder registry of 

proposals to add a plant to the NAPPRA 

list, or to remove a plant based on 

completion of a risk analysis that 

demonstrates that the plant can be 

imported safely. A third asked that 

every means be used to ensure that 

members of the plant industry are wellinformed to ensure proper engagement 

from those directly affected. 

We agree with these commenters. We 

will continue to involve all the 

governmental agencies and groups 

mentioned by commenters, as well as 

the rest of the general public, in the 

addition of taxa to the NAPPRA 

category and in the revision of the 

plants for planting regulations in 

general. We will link to the Federal 

Register notices that we publish to add 

taxa to the NAPPRA category on our 

plants for planting Web site, as well as 

any PRAs and rules published to 

remove taxa from the NAPPRA category. 

We will also notify subscribers to the 

PPQ Stakeholder Registry regarding 

actions related to the plants for planting 

regulations. 

One commenter, a representative of a 

foreign NPPO, asked how we will 

provide notification of a proposed 

addition to the NAPPRA category, e.g., 

through the WTO notification process or 

through another mechanism. 

When we publish a notice that is 

relevant to international trade in the 

Federal Register, we always notify the 

WTO through the formal notification 

process. We will continue to do this for 

NAPPRA-related notices. 

Importation of Taxa During Evaluation 

and During the Comment Period; 

Restricting the Importation of Taxa That 

Have Already Been Imported Into the 

United States 

To add taxa to the NAPPRA category, 

we proposed to publish in the Federal 

Register a notice announcing our 

determination that a taxon of plants for 

planting is either a quarantine pest or a 

host of a quarantine pest. This notice 

would make available a data sheet that 

would detail the scientific evidence that 

we evaluated in making our 

determination, including references for 

that scientific evidence. We proposed to 

provide for a public comment period of 

a minimum of 60 days on our proposed 

addition to the list and specify a 

proposed effective date for the addition 

of the taxon to the NAPPRA category. 

Proposed paragraph (b)(2) of § 319.37– 

2a described how we proposed to 

respond to comments on the notices. We 

proposed to issue a notice after the close 

of the public comment period indicating 

that the taxon will be added to the list 

of taxa not authorized for importation 

pending pest risk analysis if: 

• No comments were received on the 

data sheet; 

• The comments on the data sheet 

revealed that no changes to the data 

sheet were necessary; or 

• Changes to the data sheet were 

made in response to public comments, 

but the changes did not affect our 

determination that the taxon poses a 

potential risk of introducing a 

quarantine pest into the United States. 

If comments presented information 

that leads us to determine that the taxon 

does not pose a potential risk of 

introducing a quarantine pest into the 

United States, the proposed rule stated 

that APHIS would not add the taxon to 

the NAPPRA list. We proposed to issue 

a notice giving public notice of this 

determination after the close of the 

comment period. 

Four commenters stated that we 

should prevent the importation of taxa 

of plants for planting that are under 

consideration for addition to the 

NAPPRA category. 

Several commenters stated that 

importation of any taxon considered for 

addition to the NAPPRA category 

should be prohibited during the 60-day 

public comment period and 

subsequently until we publish the 

notice announcing a final decision 

regarding whether to add the taxon to 

the NAPPRA category. 

One commenter recommended that 

we prohibit the importation of plants for 

planting at the time the notice is 

published, or earlier if possible. In the 

absence of clear language indicating 

their status, the commenter assumed 

that APHIS will continue to allow 

importation until rulemaking is 

completed that adds these species to the 

NAPPRA category. The commenter 

stated that this seems unwise and 

continues to subject the United States to 

unnecessary risk of pest introduction 

and potential harm from establishment. 

After all, the commenter asked, if the 

agency has scientific evidence 

indicating potential harm, why continue 

to let unrestricted importation while the 

rulemaking process proceeds for several 

months? Without the authority to 

suspend importation of suspect species 

as soon as APHIS obtains credible 

scientific evidence, the commenter 

stated, the United States will be 

subjected to months, perhaps years, of 

unnecessary risk awaiting the initiation 

and conclusion of rulemaking. 

One commenter expressed support for 

continued opportunities for stakeholder 

and public input during the comment 

period. 

We appreciate the opportunity to 

clarify this aspect of how the NAPPRA 

process will work. When we find 

evidence that the importation of plants 

for planting that are currently being 

imported poses a risk of introducing a 

quarantine pest, we stop their 

importation through the issuance of a 

Federal import quarantine order, also 

referred to as a Federal order. 

An example of a Federal order used 

to restrict the importation of plants for 

planting is our Federal order prohibiting 

the importation of citrus seed from 

certain countries to prevent the 

introduction of citrus greening 

(Huanglongbing disease of citrus) and 

citrus variegated chlorosis. This Federal 

order was effective January 29, 2008, 

and was superseded by an interim rule 

published in the Federal Register and 

effective on April 6, 2010 (75 FR 17289– 

17295, Docket No. APHIS–2008–0052). 

The Federal order can be viewed at 

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

import_export/plants/plant_imports/ 

federal_order/downloads/hlb_cvc.pdf. 

After this final rule becomes effective, 

if a taxon of plants for planting is 

currently being imported and we 

determine that the taxon should be 

added to the NAPPRA category because 

it is a host of a quarantine pest, we will 

issue a Federal order to stop its 

importation. We will also publish a 

notice announcing our determination 

that the taxon is a host of a quarantine 

pest and making available a data sheet 

that details the scientific evidence that 

we evaluated in making our 

determination, including references for 

that scientific evidence. We will solicit 

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comments from the public. If comments 

present information that leads us to 

determine that the importation of the 

taxon does not pose a risk of 

introducing a quarantine pest into the 

United States, APHIS would rescind the 

Federal order and not add the taxon to 

the NAPPRA list. 

For example, if this final rule had 

been effective when we determined that 

we needed to prevent the importation of 

citrus seed from countries where citrus 

greening and citrus variegated chlorosis 

are present, we would have issued a 

Federal order and prepared a data sheet 

summarizing the scientific evidence that 

led us to make the determination that 

citrus seed from those countries is a 

host of a quarantine pest. We would 

then have published a notice in the 

Federal Register announcing our 

determination that such seed is a host 

of a quarantine pest and giving the 

public an opportunity to comment. 

Because the process for publishing a 

notice is simpler and less timeconsuming than the process for 

publishing an interim rule, the NAPPRA 

process would likely have allowed for 

earlier public input on the risk posed by 

the importation of citrus seed from 

countries where citrus greening or citrus 

variegated chlorosis exists. Meanwhile, 

the Federal order would have continued 

to protect the United States from the 

risk associated with the importation of 

citrus seed from those countries while 

we evaluated the public comments we 

received and determined whether to 

confirm the addition of the taxon to the 

NAPPRA category. (If we determined, 

based on evidence submitted by 

commenters, that we should not add the 

taxon to the NAPPRA category, we 

would rescind the Federal order.) 

An example of a Federal order used 

to stop the importation of a taxon of 

plants for planting that is a quarantine 

pest is the Federal order prohibiting the 

importation of Lygodium microphyllum 

and L. flexuosum. This Federal order 

was effective May 30, 2008, and was 

superseded by an interim rule published 

in the Federal Register and effective on 

October 19, 2009 (74 FR 53397–53400, 

Docket No. APHIS–2008–0097) that 

added these two species to the noxious 

weed list in 7 CFR part 360. The Federal 

order can be viewed at http:// 

www.aphis.usda.gov/plant_health/ 

plant_pest_info/weeds/downloads/ 

federalorder-lygodiums.pdf. 

We published a Federal order to stop 

the importation of those Lygodium 

species because we became aware of 

commercial interest in importing L. 

microphyllum, at the same time that the 

State of Florida requested that we 

restrict the importation of both species 

to support its official control efforts. We 

do not anticipate that we will often 

issue Federal orders preventing the 

importation of taxa of plants for 

planting that are quarantine pests. If 

taxa of plants for planting have been or 

are being imported into the United 

States, they are present in the United 

States and thus not eligible for 

designation as quarantine pests unless 

they are under official control, as L. 

microphyllum was. 

We will continue to authorize the 

importation of taxa of plants for 

planting if they are being considered for 

NAPPRA. If we have not yet made a 

determination that the importation of a 

taxon poses a risk of introducing a 

quarantine pest, we would not have a 

solid reason to prevent its importation. 

In this final rule, we are not including 

the provision that we will specify a 

proposed effective date for the addition 

of the taxon to the NAPPRA category; 

our ability to use a Federal order to 

impose import restrictions immediately, 

if appropriate, makes this provision 

unnecessary. 

If we do not use a Federal order to 

enforce restrictions on the importation 

of a taxon immediately, and the 

comments we receive on the initial 

notice do not cause us to change our 

determination that the taxon should be 

added to the NAPPRA category, the 

taxon will be added to the NAPPRA 

category when we publish the notice 

after the comment period confirming the 

taxon’s addition. 

With respect to the concerns one 

commenter expressed about the length 

of the rulemaking process, the process 

of adding taxa to the NAPPRA lists, 

which involves publishing Federal 

Register notices supported by data 

sheets, is expected to be more timely 

than the current process, which 

typically involves proposed rules and 

final rules supported by a 

comprehensive PRA. A similar process 

has resulted in much-expedited 

approval for authorizing the importation 

of fruits and vegetables under the 

regulations in § 319.56–4, and we expect 

that the NAPPRA process will work in 

a similarly expedited fashion to address 

the risk associated with specific taxa of 

plants for planting. 

Three commenters stated that the 

proposed NAPPRA category would 

allow APHIS to take action not only 

when evidence indicates that a taxon of 

plants for planting is a quarantine pest 

or a host of a quarantine pest, but also 

when conditions under which imported 

plants are produced have changed in 

ways that make those plants pose a 

higher pest risk. The commenters stated 

that such situations may include: 

• Plants are being imported from new 

sources; 

• Plants are being produced using 

unexpected horticultural methods that 

may pose additional risk (such as, being 

collected from the wild rather than 

grown in a confined area); and 

• New pests are discovered in a 

production area. 

The commenters are correct in stating 

that the NAPPRA category will allow us 

to address the third situation. However, 

we will only add taxa imported from a 

new source to the NAPPRA category if 

there is scientific evidence that 

indicates that the importation of the 

taxon from that new source poses a risk 

of introducing a quarantine pest. This 

would normally be due to the presence 

of a quarantine pest for which the taxon 

is a host in the new area of production. 

In the case of the second situation, 

normally we would restrict the 

importation of a taxon if a quarantine 

pest of that taxon is present in the area 

of export, regardless of whether 

commercial production practices 

mitigated the risk that the taxon would 

be infested by the quarantine pest. 

Consideration of appropriate means to 

mitigate risk associated with a 

quarantine pest is part of the PRA, not 

part of the evaluation process for adding 

a taxon to the NAPPRA category. 

Two commenters stated that a 6- 

month ‘‘investigative period’’ for 

removal from the NAPPRA list or for a 

listing decision one way or another, to 

ensure the rigor of the process, perhaps 

would make the effort more amenable to 

small businesses or individual 

collectors and growers. 

We assume the commenters are 

referring to the comment period on the 

notice announcing our determination 

that a taxon of plants for planting is 

either a quarantine pest or a host of a 

quarantine pest or to the comment 

period on any proposed rule we might 

publish following a PRA conducted for 

a NAPPRA-listed taxon. In the past, we 

have found 60 days to be an adequate 

period for soliciting comments. 

However, if members of the public find 

that they need more time, they may 

request an extension of the comment 

period to allow for more investigation 

on their part. 

One commenter asked whether APHIS 

would delay publication of notices to 

amass a group of taxa to be added to the 

NAPPRA category or would instead 

publish a notice every time an 

individual species comes to the agency’s 

attention. The commenter stated that, 

given current resource allocations to the 

agency, it seems unlikely and costinefficient to publish a notice to add 

species to NAPPRA every time a 

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15An example of a Federal order that provides 

such mitigations is our Federal order to restrict the 

importation of various taxa in order to prevent the 

introduction of Asian longhorned beetle and citrus 

longhorned beetle. This order can be found on the 

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

import_export/plants/plant_imports/federal_order/ 

downloads/citrus_alb_2009_16_1.pdf. 

deleterious species comes to the 

agency’s attention. 

We will publish notices whenever we 

determine that a taxon of plants for 

planting is a quarantine pest or a host 

of a quarantine pest. In some cases this 

would result in a group of taxa being 

added to the NAPPRA category at once, 

as several taxa may be the subject of 

determinations at one time. We will not 

delay publication of a notice in order to 

include some minimum number of taxa 

in the notice. 

Two commenters recommended that 

we not add taxa that are in trade (i.e., 

currently being imported) to the 

NAPPRA lists unless or until such 

action is justified based on a PRA. The 

commenters expressed concern that 

adding taxa that are currently being 

imported to the NAPPRA lists without 

first conducting a PRA would be 

economically disruptive to companies 

importing these taxa and could even 

prompt retaliatory reactions among 

trading partners. 

Another commenter stated that taxa 

should be eligible for addition to the 

NAPPRA list even if they are currently 

being imported; USDA should not allow 

‘‘grandfathering’’ in of a plant taxon 

(e.g., Rhododendron) if that plant has 

since proven to be a host of quarantine 

pests or a quarantine pest itself. 

One commenter asked how we would 

address emerging quarantine pests for 

currently admissible taxa. 

We appreciate that imposing 

restrictions on current trade causes 

economic impacts on companies 

importing the affected taxa. However, 

we agree with the second commenter; 

when scientific evidence indicates that 

a taxon of plants for planting is a 

quarantine pest or a host of a quarantine 

pest, we need to act promptly to prevent 

the importation of that taxon, to protect 

U.S. agricultural and environmental 

resources. It should be noted again that 

taking such actions is consistent with 

our commitments under the WTO and 

IPPC; therefore, trading partners should 

not take retaliatory action in response to 

restrictions placed on the trade of plants 

for planting through the NAPPRA 

category. 

Conducting a PRA on a taxon after the 

taxon has been added to the NAPPRA 

list will allow us to consider all the 

evidence related to a taxon (including 

all the quarantine pests for which it can 

serve as a host), as well as any 

conditions under which the taxon can 

be imported safely. However, promptly 

addressing the risk associated with 

importation of a taxon that is a 

quarantine pest or a host of a quarantine 

pest is essential to achieving a more 

appropriate level of protection against 

the risk posed by the importation of 

plants for planting. 

For taxa that are hosts of quarantine 

pests and that have been imported 

previously, there may be conditions 

under which the taxa could be imported 

that would mitigate the risk associated 

with the quarantine pest. In such a case, 

our Federal order could establish 

mitigations for those countries exporting 

significant amounts, assuming the pest 

was well-understood and appropriate 

mitigations were readily available.15 We 

would not authorize pending pest risk 

analysis the importation of the taxon 

from countries that are currently not 

exporting the taxon to the United States 

and in which the quarantine pest is 

present. We would follow this action 

with a Federal Register notice 

announcing our determination that the 

taxon is a host of a quarantine pest. 

In the summary of our initial 

regulatory flexibility analysis in the 

Background section of the proposed 

rule, we stated that the ‘‘NAPPRA 

regulations would initially list taxa of 

plants for planting that, to our 

knowledge, have not yet been imported 

into the United States but present a 

potential risk.’’ 

One commenter stated that the word 

‘‘initially’’ in the quote is disturbing. 

The commenter asked whether this 

meant that APHIS may in the future 

choose to include in the NAPPRA list 

other plants that are already in the 

United States and whether APHIS may 

in the future choose to include in the 

NAPPRA list other plants that do not 

present a risk. The commenter also 

asked what assurance the public has 

that APHIS will not in the future 

‘‘reinterpret’’ this as giving APHIS the 

authority to establish a list of taxa 

whose importation is authorized while 

prohibiting the importation of all other 

taxa. 

We appreciate the opportunity to 

clarify. As this discussion has indicated, 

when necessary, we do plan to use the 

NAPPRA category to restrict the 

importation of taxa of plants for 

planting that have previously been 

imported into the United States; the 

quote in the initial regulatory flexibility 

analysis was in error. 

With regard to the commenter’s other 

concerns, we will only add a taxon of 

plants for planting that is already in the 

United States to the NAPPRA category 

if scientific evidence indicates that it is 

a quarantine pest (i.e., that it causes 

damage and is not present in the United 

States or is present but under official 

control) or a host of a quarantine pest. 

In addition, we will only add taxa to the 

NAPPRA list based on scientific 

evidence, which we will detail in a data 

sheet that we will make available to the 

public for comment. As the regulations 

specify both of these points in detail— 

the NAPPRA category can be used only 

for quarantine pests or hosts of 

quarantine pests, and we must make a 

data sheet available that details the 

scientific evidence that we evaluated in 

making our determination that a taxon 

of plants for planting is a quarantine 

pest or a host of a quarantine pest, 

including references for that scientific 

evidence—we would need to change the 

regulations themselves in order to 

follow the hypothetical policy about 

which the commenter is concerned. We 

are committed to following the process 

set out in this final rule. 

One commenter asked what 

procedure a prospective importer will 

have to follow for taxa not currently 

being imported but not on a NAPPRA 

list. The commenter assumed that such 

taxa will be allowed to be imported 

under current APHIS protocols and 

procedures. 

The commenter is correct. We did not 

propose any changes to the general 

restrictions on the importation of plants 

for planting, and we are not making any 

in this final rule. 

Clarification of What Imports Are Not 

Authorized 

Several commenters stated that we 

should clarify that the importation of 

any number of propagules of taxa in the 

NAPPRA category, not only imports of 

more than 12 propagules, are not 

authorized unless otherwise determined 

through a PRA. One commenter noted 

that some single releases are sufficient 

to cause significant harm, as infestations 

by gypsy moth, Caulerpa taxifolia, and 

other plant pests are believed to have 

arisen from single releases in the United 

States. 

The commenters appear to be 

referring to the regulations in § 319.37– 

3, which do not require an import 

permit for most lots of 12 or fewer 

articles. However, the importation of 

any taxon in the NAPPRA category is 

not authorized. We would not allow any 

importation of a taxon listed in the 

NAPPRA category, regardless of the size 

of the lot of articles intended for 

importation, subject to the general 

restrictions of the plants for planting 

regulations; we would only allow their 

importation under a Departmental 

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permit in accordance with § 319.37– 

2(c). 

Based on these comments, we 

reviewed the regulations to determine 

whether any further clarification was 

necessary with regard to the fact that the 

importation of articles in the NAPPRA 

category is not authorized. While we did 

not determine that any changes to the 

permit regulations are necessary, we did 

find one area that needs to be clarified. 

Paragraph (d) of § 319.37–4 authorizes 

the importation of small lots of seed 

without a phytosanitary certificate 

provided that the shipment meets 

certain conditions. One of these 

conditions, found in paragraph (d)(2), is 

that the seed is not of any prohibited 

genera listed in § 319.37–2; is not of any 

noxious weed species listed in part 360; 

does not require an additional 

declaration on a phytosanitary 

certificate in accordance with § 319.37– 

5; does not require treatment in 

accordance with § 319.37–6; is not 

restricted under the regulations in 7 

CFR parts 330 and 340; and meets the 

requirements of 7 CFR part 361. This 

requirement is intended to ensure that 

seed imported under the small lots of 

seed program is free of quarantine pests. 

As the importation of some seed will 

not be authorized under the NAPPRA 

category, paragraph (d)(2) of § 319.37–4 

should indicate that seed imported 

without a phytosanitary certificate 

under the small lots of seed program 

must not be listed in the NAPPRA 

category in § 319.37–2a. Accordingly, in 

this final rule, we are amending 

paragraph (d)(2) of § 319.37–4 to 

indicate that small lots of seed imported 

under that paragraph must not be listed 

as not authorized for importation 

pending pest risk analysis, as provided 

in § 319.37–2a. 

Process for Removing a Taxon From the 

NAPPRA Lists 

In paragraph (e) of proposed § 319.37– 

2a, we proposed to provide that any 

person may request that APHIS remove 

a taxon from the list of taxa whose 

importation is not authorized pending 

pest risk analysis. We stated that we 

would encourage persons who submit 

such a request to provide as much 

information as possible regarding the 

taxon and, if the taxon is a potential 

host of a quarantine pest, any 

quarantine pests that may be associated 

with it, as it is likely that providing 

such information would allow us to 

complete a PRA more promptly than we 

would otherwise be able to. 

One commenter asked whether ‘‘any 

person’’ included foreign governments 

or foreign exporters. 

Several commenters stated that we 

should only allow requests for PRAs for 

taxa listed in NAPPRA to come from an 

exporting country, rather than from any 

person. These commenters stated that 

such an approach would be consistent 

with the process of requesting PRAs for 

the importation of fruits and vegetables 

and that such an approach would allow 

APHIS to focus attention on PRAs for 

the highest-priority taxa. 

One commenter stated that the 

process to remove a taxon from the 

NAPPRA list should be sensible and not 

out of reach, financially and materially, 

for the common plant collector or small 

nursery owner. 

We have determined that it is 

necessary to limit requests for PRAs to 

remove taxa from the NAPPRA category 

to taxa for which the NPPOs of 

exporting countries are willing to 

supply information. Although we will 

allow any person (including common 

plant collectors and small nursery 

owners) to make requests to conduct a 

PRA to remove a taxon from the 

NAPPRA category, we will still need 

information from exporting NPPOs in 

order to complete a PRA. 

Accordingly, we are changing 

proposed paragraph (e) in § 319.37–2a to 

indicate that requests to remove a taxon 

from the NAPPRA list must be made in 

accordance with § 319.5. This section, 

headed ‘‘Requirements for submitting 

requests to change the regulations in 7 

CFR part 319,’’ allows anyone to submit 

a request to change the regulations in 7 

CFR part 319, but requires the 

submission of information from an 

NPPO before a PRA will be prepared. 

Section 319.5 requires the NPPO to 

submit various information that only an 

NPPO could verify, including: 

• A description and/or map of the 

specific location(s) of the areas in the 

exporting country where the plants, 

plant parts, or plant products are 

produced; 

• Scientific name (including genus, 

species, and author names) and 

taxonomic classification of arthropods, 

fungi, bacteria, nematodes, virus, 

viroids, mollusks, phytoplasmas, 

spiroplasmas, etc., attacking the crop; 

and 

• Plant part attacked by each pest, 

pest life stages associated with each 

plant part attacked, and location of pest 

(in, on, or with commodity). 

We need this information in order to 

evaluate all the pests that could be 

associated with a taxon. While a plant 

taxon may be added to the NAPPRA 

category based on evidence that it is a 

host of a quarantine pest, there may be 

additional quarantine pests for which 

the taxon can serve as a host, and it may 

also be a quarantine pest itself. 

Similarly, a taxon that is added to the 

NAPPRA category as a quarantine pest 

may itself also be a host of a quarantine 

pest. The PRA process will examine all 

of these possibilities in determining 

whether there exist conditions under 

which the taxon in question may be 

imported safely. 

We recognize that an NPPO with little 

interest in exporting the taxon would 

likely consider providing such 

information to be a low priority. We 

encourage importers who submit 

requests to remove a taxon from the 

NAPPRA category to work with foreign 

NPPOs in determining whether to 

submit a request. Although we 

recognize that requiring the 

involvement of a foreign NPPO may 

make it difficult to prepare a PRA for 

some taxa that we add to the NAPPRA 

list, we have no other way to obtain and 

verify the information we will need to 

conduct the PRA. In addition, if the 

PRA finds that the importation of the 

taxon can be allowed subject to certain 

restrictions, the NPPO would need to be 

involved in order to monitor and certify 

that producers were complying with the 

restrictions. 

One commenter recommended that 

we encourage persons who request that 

we prepare a PRA to provide any 

relevant information regarding how the 

taxon is grown and potential safeguards 

that may mitigate any risk, and 

recommended that we take such 

practices into full account in our 

decisionmaking. 

The regulations in § 319.5 require the 

submission of such information by the 

foreign NPPO. Accordingly, the change 

discussed earlier addresses this 

comment. 

Once a request has been submitted to 

remove a taxon of plants for planting 

from one of the NAPPRA lists, we 

proposed to conduct a PRA to determine 

the risk associated with the importation 

of that taxon. Upon completion of the 

PRA, we proposed to determine whether 

the importation of the taxon should be 

prohibited; allowed subject to special 

restrictions, such as a systems approach, 

treatment, or postentry quarantine; or 

allowed subject to the general 

requirements of the plants for planting 

regulations. We stated that we would 

then conduct rulemaking accordingly. 

One commenter asked whether there 

are any fees associated with making a 

request to remove a taxon from the 

NAPPRA list. 

There are no fees charged for such 

requests. 

Five commenters asked us to provide 

a timetable for completion of a PRA 

once a request has been submitted to 

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31196 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

remove a taxon from the NAPPRA list. 

Four commenters stated that we should 

complete PRAs in a timely manner. One 

of these commenters stated that, ideally, 

PRAs should be completed in no more 

than 1 to 2 years. One commenter stated 

that the proposed new category may 

create serious barriers to trade, in 

particular if the procedure for 

conducting a PRA is heavy and the 

capacity to deal with the issue limited. 

We strive to complete all PRAs in a 

timely manner. However, the length of 

time it takes to complete a PRA is 

dependent on several factors, some of 

which are not in APHIS’ control: 

• The availability of data on the 

taxon; 

• The timeliness with which the 

foreign NPPO responds to our requests 

for information; and 

• Competition for APHIS’ limited 

resources available for developing 

PRAs. 

These factors mean that we cannot 

provide a timetable for preparation of a 

PRA in response to a request to remove 

a taxon from the NAPPRA category. 

However, if a foreign country wishes to 

be able to conduct trade in a taxon with 

the United States, we would expect that 

its NPPO would provide information to 

APHIS in a timely manner, thus helping 

to reduce any barriers to trade imposed 

by the PRA process. 

One commenter stated that seeking to 

complete a PRA in a timely manner will 

likely lead to situations when a 

determination is required in the absence 

of adequate information. In these cases, 

the commenter recommended that we 

be cautious in our decisionmaking. The 

commenter also recommended that we 

require the importing firm to prepare an 

economic environmental impact 

statement that considers the possible 

economic and environmental impacts of 

the proposed importation. 

Once a plant taxon has been added to 

the NAPPRA category, its importation is 

no longer authorized, meaning that we 

can wait for data necessary to complete 

a PRA to become available, if necessary, 

without endangering U.S. agricultural 

and environmental resources. 

At this point, only APHIS prepares 

environmental documents for proposed 

importations under the National 

Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321 et seq.), and 

only APHIS conducts economic 

analyses of the potential costs and 

benefits of allowing the importation of 

a taxon. We may consider allowing 

petitioners to fund the preparation of 

environmental documents in the future. 

One commenter, noting that the 

proposed rule stated that it has been a 

challenge for us to follow up on the 

available scientific evidence by 

initiating PRAs, questioned whether we 

would be able to adequately handle the 

tasks of data sheet and PRA preparation 

that are associated with the NAPPRA 

category. 

We expect that we will be able to 

prepare data sheets in response to 

evidence that a plant taxon is a 

quarantine pest or a host of a quarantine 

pest much more quickly than PRAs, as 

data sheets do not require a 

comprehensive examination of the 

available information about a taxon. As 

discussed earlier, challenges remain in 

completing PRAs, although we strive to 

complete them as quickly as possible. 

However, implementing this final rule 

will allow us to address risk associated 

with the importation of plants for 

planting much more quickly than we 

were able to when we used a 

comprehensive PRAs as the basis for 

imposing restrictions on the importation 

of taxa of plants for planting. 

Several commenters requested that we 

provide links to PRAs conducted on 

taxa that we have added to the NAPPRA 

category. 

We will include those PRAs as part of 

the rulemaking docket on 

Regulations.gov (http:// 

www.regulations.gov) when we conduct 

rulemaking based on the conclusions of 

the PRAs. In addition, interested parties 

can sign up for the PPQ Stakeholder 

Registry to receive e-mail notification 

when we make a PRA on a taxon listed 

in NAPPRA publicly available. 

One commenter, a representative of a 

seed industry organization, stated that 

basing importations of plants and seeds 

for planting on PRAs and formal 

rulemaking procedures will likely result 

in lengthy timeframes for 

decisionmaking by APHIS unless proper 

procedures are established and adequate 

resources are devoted to implement the 

proposed rule. The commenter stated 

that the same problems and constraints 

currently being experienced by APHIS 

in authorizing the importation of fruits 

and vegetables could easily occur with 

plants for planting once this rule 

becomes effective. The commenter 

stated that the seed industry fears that 

the capacity for APHIS to conduct 

additional PRAs will not be adequate; 

disagreements over pest lists (in 

particular for the hosts of quarantine 

pests) will cause delays; and PRAs and 

needs for rulemaking may not receive 

fair consideration for proper priority in 

a system already severely clogged with 

backlogs and high-priority trade 

agendas. 

The commenter recommended that 

APHIS address the resource issues and 

priority-setting processes that will be 

necessary for the effective 

administration of this rule. In addition, 

to avoid unnecessary formal notice-andcomment rulemaking, the commenter 

recommended that APHIS develop and 

implement a procedure for issuing 

permits rather than developing formal 

rules for taxa for which the risk can be 

managed using mitigations that have 

already been approved for similar 

purposes. This approach is now in use 

in the fruits and vegetables regulations 

for low-risk commodities in which risk 

can be appropriately reduced with 

measures that have already been 

approved for the same pest(s). Under 

this approach, if the PRA determines 

that approved risk mitigation measures 

will adequately reduce the risk, APHIS 

would publish a notice in the Federal 

Register that it will issue a permit rather 

than go through formal notice-andcomment rulemaking. The commenter 

stated that this approach would reduce 

the decisionmaking process from 1 to 2 

years down to 6 months or less. 

It should be noted again that the 

importation of most plants for planting 

will not be affected by the 

implementation of the NAPPRA 

category, which will only list specific 

taxa as quarantine pests or hosts of 

quarantine pests, based on scientific 

evidence. 

As noted earlier, the timetable for 

completion of a PRA depends on many 

factors, some of which are outside 

APHIS’ control. However, it is 

important to note that continuing to 

allow the entry of taxa that are 

quarantine pests or hosts of quarantine 

pests would expose the agricultural and 

environmental resources of the United 

States to continued risk while a PRA is 

developed. Adding such taxa to the 

NAPPRA category provides a more 

appropriate balance between managing 

risk and allowing trade. 

We agree with the commenter’s 

suggestion to develop a streamlined 

approach to mitigate the risk associated 

with taxa listed as NAPPRA and to 

authorize their importation. We plan to 

propose such an approach in the future. 

This is further discussed later in this 

document under the heading ‘‘RiskMitigating Production Practices.’’ 

However, such a streamlined approach 

will not necessarily affect the amount of 

time it takes to conduct a PRA, but 

rather the amount of time it takes to 

authorize importation of a taxon under 

certain conditions once a PRA has been 

completed. 

One commenter stated that we should 

consider waiving the requirement to 

conduct a PRA if the agency has 

determined that clear scientific 

evidence exists to counter the earlier 

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evidence that supported listing the 

taxon, without proceeding through the 

full PRA process. 

We would not remove a taxon from 

the NAPPRA category simply because 

some scientific evidence exists that 

indicates that the importation of a taxon 

may be safe. The NAPPRA category is 

designed to allow us to quickly address 

risk; the PRA process is designed to take 

into account all the evidence regarding 

the risk associated with the importation 

of a particular taxon. That said, if we 

receive information indicating that the 

evidence we used to place a taxon on 

the NAPPRA list was in error (for 

example, involving a taxonomic 

misidentification), we would remove 

the taxon from the NAPPRA list. 

To accommodate such removals, we 

are adding to the proposed regulations 

in § 319.37–2a a new paragraph (e)(4). 

This paragraph indicates that APHIS 

may also remove a taxon from the 

NAPPRA list when APHIS determines 

that the evidence used to add the taxon 

to the list was erroneous. We are giving 

the example of a taxonomic 

misidentification to ensure that the 

nature of the error is clear to readers of 

the regulations—the error would need to 

be a clear error, and not simply a 

disputable data point in the original 

evidence. 

One commenter stated that any rule 

regarding the prohibition or restriction 

of a species should not be considered 

‘‘final,’’ and, as long as new information 

becomes available, there should be room 

to continue the process of refining any 

list. Another commenter stated that, 

because relevant information about a 

taxon that we add to the NAPPRA 

category may arise after the comment 

period on the initial Federal Register 

notice has closed, we should devise a 

mechanism to acquire and post 

comments in perpetuity. 

We agree that the public should have 

a means to send us additional 

information about any taxon that we 

have added to the NAPPRA category. 

We will provide an e-mail address for 

submitting such information on the 

plants for planting Web site at http:// 

www.aphis.usda.gov/import_export/ 

plants/plant_imports/ 

Q37_nappra.shtml. Any comments on 

the scientific information made 

available in the initial Federal Register 

notice would be helpful in preparing 

any subsequent PRA we may conduct. It 

is important to note, however, that 

unless the scientific evidence on which 

we based our determination was shown 

to be in error, we would need to 

conduct a PRA to remove a taxon from 

the NAPPRA category. 

Importation of NAPPRA Taxa Under 

Departmental Permits 

The regulations in paragraph (c) of 

§ 319.37–2 provide that articles listed as 

prohibited articles in paragraphs (a) and 

(b) of § 319.37–2 may nevertheless be 

imported if they are imported under a 

permit for prohibited articles, referred to 

in the regulations as a Departmental 

permit. Such articles must be imported 

by the USDA for experimental or 

scientific purposes and imported at the 

Plant Germplasm Quarantine Center or 

at a plant inspection station and must be 

labeled with the permit number. The 

permit must specify conditions for 

importation that are adequate to prevent 

the introduction of plant pests into the 

United States. These provisions allow 

for the importation of small amounts of 

germplasm free of quarantine pests, 

because scientific and experimental 

research must be done on plants for 

planting in order to understand their 

biology and develop effective mitigation 

strategies for any risks their importation 

may pose. 

To allow for the same research to be 

done on NAPPRA-listed plants for 

planting, we proposed to amend 

§ 319.37–2(c) to indicate that it would 

also apply to articles whose importation 

is not authorized pending pest risk 

analysis, as listed in accordance with 

proposed § 319.37–2a. 

One commenter stated that small 

quantities of germplasm of NAPPRAlisted taxa should be allowed for import 

with minimal pre-import restrictions, 

though post-entry restrictions, utilizing 

a limited quarantine period with 

demonstrated tests for major pathogens 

before release for breeding, trialing, or 

commercialization, would be practical. 

The commenter suggested that 

evaluation of NAPPRA-listed taxa be 

performed by the companies wishing to 

import novel materials. This process 

would be under the guidance of APHIS 

and would take place in an environment 

with a minimal chance of escape. 

Another commenter stated that a 

permit system should also encompass 

taxon trialing for breeding and 

development, with the possibility of 

eventual commercialization subject to 

appropriate review, limitations, or 

safeguards. The commenter stated that 

this exception should apply to USDA, as 

proposed, as well as to other permittees 

specifically approved to import, for 

specific purposes, taxa on the NAPPRA 

lists. 

This commenter also urged us to 

expedite review and finalization of its 

Departmental permit revisions, which 

the commenter stated will form an 

integral part of the overall 

implementation of the proposed 

NAPPRA category. 

Although allowing such importation 

is outside the scope of this final rule, we 

do plan to publish a proposed rule that 

would revise the Departmental permit 

provisions. This proposal would give us 

the authority to allow private companies 

and individuals to import both 

prohibited taxa and taxa whose 

importation is not authorized pending 

pest risk analysis for analytical, 

experimental, therapeutic, or 

developmental purposes, if the results 

of growth and testing of the taxon in 

controlled conditions support doing so. 

We agree with the second commenter 

that this revision is important to the 

implementation of NAPPRA. 

One commenter stated that, after 

testing of taxa that have already been 

imported into the United States, plants 

should be exempted at the species level, 

where appropriate, rather than at the 

cultivar level; once a species has been 

tested and found to pose little risk of 

being an invasive pest or harboring a 

quarantine pest, no further screening is 

needed. Taxa already safely imported in 

significant commercial quantities 

should be exempt from further 

screening. Botanical gardens, 

universities, and private companies are 

all capable of screening. Such screening 

should be modeled after post-entry 

quarantine conditions developed to 

intercept pests. Part of the restriction 

imposed could include a requirement to 

monitor for signs of invasiveness before 

wide-scale commercial introduction 

could occur. 

We will only restrict importation 

through the NAPPRA category of taxa 

that are quarantine pests or hosts of 

quarantine pests; other taxa, including 

those that have already been imported 

into the United States, will continue to 

be subject only to the general 

importation restrictions for plants for 

planting. Thus, taxa that are safely 

imported in commercial quantities 

would not be added to the NAPPRA 

category, unless new scientific evidence 

indicated that they are quarantine pests 

or hosts of quarantine pests. 

Nevertheless, we will take the 

commenter’s advice about research into 

account as we develop our revision of 

the Departmental permit regulations. 

We are making one change related to 

importation under Departmental permit 

in this final rule. In § 319.37–2, 

paragraphs (a) and (b) specifically 

indicate that the taxa listed there may 

not be imported except in accordance 

with paragraph (c) of that section. To 

ensure that readers of the NAPPRA 

regulations are aware that importation 

under Departmental permit is an option 

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for NAPPRA taxa, we are changing the 

introductory text of proposed paragraph 

(a) of § 319.37–2a to indicate that 

importation of NAPPRA taxa is not 

authorized pending the completion of a 

PRA, except as provided in § 319.37– 

2(c). 

Seed 

Some commenters specifically 

addressed seed-related issues. 

One commenter requested that we not 

impose all-encompassing restrictions on 

the importation of plants for planting, 

especially seeds. The commenter stated 

that seeds are essential for preservation 

of diversity within our agricultural 

systems, and that major companies 

benefit from further restrictions on 

seeds. 

The NAPPRA category will only be 

used to prevent the importation of taxa 

of plants for planting that we determine 

to be quarantine pests or hosts of 

quarantine pests, based on scientific 

evidence. The importation of seed from 

taxa that are quarantine pests will not be 

authorized under NAPPRA, as such 

importation could introduce a 

quarantine pest. For taxa that are hosts 

of quarantine pests, the importation of 

seed will be permitted unless 

specifically restricted by APHIS based 

on scientific evidence that the 

associated pest can be introduced and 

established in the United States through 

the importation of seed. Even when a 

taxon is determined to be a host of a 

quarantine pest, its seed can often be 

imported safely, depending on the 

biology of the pest. As discussed earlier, 

preventing the importation of 

quarantine pests will help to prevent 

damage to U.S. agricultural and 

environmental resources. 

One commenter, expecting that the 

largest impact of the NAPPRA category 

will be on seeds that are a potential 

pathway for introduction of plant 

pathogens, recommended that APHIS 

develop criteria to objectively assess the 

risk of seeds as a pathway for 

introduction of plant pathogens. The 

commenter stated that extreme care 

needs to be taken in regard to what 

hosts of seed-transmitted pathogens are 

placed on this list. Many plant 

pathogens, for example, have broad host 

ranges; a pathogen might transmit 

through its principal hosts but not 

through secondary hosts. The 

commenter stated that literature review 

must be thorough and research results 

must be verified and reported in 

additional papers in peer-reviewed 

journals to qualify to be listed as hosts. 

The commenter also stated that there 

are also many reports in the scientific 

literature of seeds as vectors of certain 

pathogens, and pathogen spores found 

as contaminants on seed; however, very 

little analysis has occurred to assess the 

risk such seeds pose. Some reports of 

seed transmission have been based on 

laboratory experiments and not on 

actual field or environmental 

observations, or have documented seed 

transmission at very low levels without 

commenting on the resultant 

probabilities for inciting an infection in 

a new environment. Such reports, once 

in the literature, are very difficult to 

refute or put into proper context, and 

many NPPOs justify actions to prohibit 

or severely restrict imports of seed 

based on these faulty or incomplete 

scientific reports. The commenter 

concluded that careful analysis needs to 

be done on the pathogen in question, its 

relationship to the seed (is the seed a 

pathway), and under what conditions 

could there be enough viable inoculum 

associated with seed to pose a risk of 

disease expression and establishment. 

The NAPPRA category is intended to 

allow us to respond in a timely manner 

to scientific evidence indicating that a 

taxon of plants for planting is (in this 

case) a host of a quarantine pest. We 

will use the best information we have 

available to determine whether the 

importation of seed from a taxon could 

result in the introduction and 

establishment of a quarantine pest 

pathogen. 

The Background section of the 

proposed rule stated that we would not 

authorize the importation of certain 

seed based on evidence that the 

quarantine pest is seedborne. In this 

document, we are clarifying that 

evidence that the presence of a pathogen 

on or in seed would not necessarily 

cause us to determine that the 

importation of that seed should not be 

authorized pending pest risk analysis. 

Depending on the biology of a pathogen, 

contamination of seed may not be 

sufficient to introduce and establish the 

pathogen in the United States. For 

example, a pathogen may be present in 

seed from an infected plant, but plants 

grown from that seed may not be 

infected with the pathogen. We would 

need specific evidence that the 

importation of the seed is a viable 

pathway for the introduction and 

establishment of a quarantine pest in 

order to add seed from a taxon to the 

NAPPRA category. 

If we become aware of such evidence, 

we will publish a notice announcing our 

determination that the importation of 

seed from the taxon could result in the 

introduction and establishment of a 

quarantine pest, and we will solicit 

public comment on that determination. 

Commenters will have the opportunity 

to offer additional information. 

Requiring evidence that the 

importation of seed could result in the 

introduction of a quarantine pest to be 

verified and reported in additional 

papers in peer-reviewed journals would 

expose the United States to risk from 

such pests while this research is 

conducted. If we took the commenter’s 

recommendation, we would not restrict 

the importation of seed from a taxon 

unless there was a peer-reviewed 

publication to confirm our evidence, 

even if the initial publication was in a 

peer-reviewed journal or an 

authoritative reference and even if no 

additional evidence was available for 

years or decades afterward, which is not 

rare in research on plants for planting. 

We stated in the proposed rule that 

reports of the host status of a taxon of 

plants for planting that are based on the 

taxon’s role as a laboratory or 

experimental host may be discounted if 

we determine that they are not relevant 

to the actual conditions under which 

the taxon would be grown and 

imported. Laboratory results alone may 

thus be discounted. However, if we did 

have evidence of environmental 

transmission of a pathogen, or 

laboratory results that are relevant to the 

conditions under which the taxon 

would be grown or imported, we would 

add the taxon to NAPPRA to address the 

risk of importing a quarantine pest. 

When a PRA is done to 

comprehensively assess the risk posed 

by the importation of seed from the 

taxon, it will take into account all 

available evidence. 

We disagree with the commenter’s 

prediction that the largest impact of the 

NAPPRA category is likely to be on the 

importation of seed. The importation of 

seed from most taxa listed as hosts of 

quarantine pests will continue to be 

allowed—for example, seed from hosts 

of insect quarantine pests. 

One commenter stated that some 

hand-pollinated commercial F1 hybrid 

vegetable seed production is located in 

certain parts of the world where 

quarantine pathogens may be present. 

(‘‘F1’’ refers to the seed (and subsequent 

plant) produced by fertilizing one taxon 

with pollen from another taxon, the 

offspring of which produce a new, 

uniform seed variety with specific 

characteristics from both parents.) The 

commenter stated that, unless supported 

by careful risk analysis, seed of some 

species could be improperly listed, 

which would result in potentially severe 

economic impacts. 

We are establishing the NAPPRA 

category to prevent the importation of 

plants for planting that could introduce 

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quarantine pests. Accordingly, we will 

add to the NAPPRA list seeds that are 

hosts of a seed-transmitted pathogen 

and that are from an area where the 

pathogen is located. Depending on the 

mechanism of transmission for the 

quarantine pathogen, standard 

production practices might not mitigate 

the risk of transmission in handpollinated commercial F1 hybrid 

vegetable seed. We would take into 

account local production practices 

when preparing a PRA to determine the 

conditions under which such seed 

could be imported. 

As mentioned earlier, paragraph (d) of 

§ 319.37–4 authorizes the importation of 

small lots of seed without a 

phytosanitary certificate provided that 

the shipment meets certain conditions. 

Three commenters stated that the 

importation of seed in small lots under 

§ 319.37–4(d) should continue to be 

authorized even for taxa listed as 

NAPPRA, and that the activities of seed 

societies should not be further 

regulated. 

Both commenters stated that 

specialist gardening societies and other 

plant collectors who use the small lots 

of seed program can provide 

information to APHIS about the 

potential invasiveness of newly 

imported plants and plants that are 

already in the United States, given their 

knowledge of plants and cultivation and 

their hands-on experience in and 

equipment for cultivating rare and 

unusual plants. 

One of the commenters stated that 

exempting seed from NAPPRA 

restrictions would protect plant 

societies from financial harm and would 

help ensure the cooperation of plant 

collectors, which would make the 

United States more safe from invasive 

pests. This commenter stated that, for 

members of plant societies, much of the 

enjoyment comes from growing 

something unusual and challenging. 

One of the main incentives for paying to 

join a plant society is to participate in 

rare seed exchanges among members, 

many of whom are located outside the 

United States. The most unusual, 

difficult-to-grow plants are by definition 

things that are not already established in 

the United States, either because they 

have not been seen before or because 

they are difficult to maintain in 

cultivation. Without those seed 

exchanges, the commenter stated, many 

of the societies would lose membership 

and could easily become financially 

unviable (most of them barely break 

even as it is). The commenter expressed 

concern that careless application of new 

plant import regulations could cripple 

the plant societies by interfering in the 

seed exchanges that help to fund them. 

Both of these commenters stated that 

small quantities of seed are much less 

likely to carry diseases or pests than live 

plants, and the private collectors who 

use the small lots of seed program 

generally grow their plants in 

conditions that minimize the chance of 

them escaping into the wild. They are 

also very aggressive about eliminating 

plants that show signs of disease, 

because they do not want trouble 

spreading to the rest of their collections. 

We appreciate the commenters’ 

suggestions. We acknowledge that seed 

societies practice responsible 

cultivation of unfamiliar taxa, and we 

value their efforts to gain additional 

information about those taxa. However, 

it is important to note that only seed 

that is subject to the general 

requirements in the plants for planting 

regulations, with no additional 

restrictions, is currently eligible for 

importation under the small lots of seed 

program in § 319.37–4(d). Seed may be 

imported under the small lots of seed 

program only if it is not of any 

prohibited genera listed in § 319.37–2; is 

not of any noxious weed species listed 

in part 360; does not require an 

additional declaration on a 

phytosanitary certificate in accordance 

with § 319.37–5; does not require 

treatment in accordance with § 319.37– 

6; is not restricted under the regulations 

in 7 CFR parts 330 and 340; and meets 

the requirements of 7 CFR part 361. 

Because seed whose importation is not 

authorized pending pest risk analysis 

would be restricted due to the risk of 

introduction of a quarantine pest via the 

seed, we need to include seed whose 

importation is restricted under the 

NAPPRA category in this list as well. 

Even a small number of seeds could 

introduce a quarantine pest into the 

United States, and depending on the 

biology of the quarantine pest it could 

spread quickly once introduced. (The 

importation of seed from taxa that are 

quarantine pests also would not be 

authorized, though we believe that 

responsible plant societies would not be 

interested in importing such seed.) 

It is important to remember that seed 

of most taxa will continue to be allowed 

to be imported after the implementation 

of the NAPPRA category. (For example, 

taxa of plants for planting that are 

difficult to maintain in cultivation, and 

thus prized by members of plant 

societies, would not likely be added to 

the NAPPRA category unless their 

importation could result in the 

introduction and establishment of a 

quarantine pest.) The importation of 

seed will be restricted under NAPPRA 

only if scientific evidence leads us to 

determine that the taxon is itself a 

quarantine pest or that its seed is a host 

of a quarantine pest. As noted earlier, 

seed from most hosts of quarantine pests 

will not be restricted under NAPPRA. 

The importation of most taxa will 

continue to be allowed subject to 

general restrictions, and the importation 

of small quantities of most seed taxa 

will continue to be allowed under the 

small lots of seed program. 

We agree that it is important to be 

careful in implementing the NAPPRA 

category. We also agree that plant 

collectors and other such enthusiasts are 

valuable sources of information on the 

behavior of imported plants for 

planting, and we hope that they will 

provide us with any information they 

have about taxa on which we solicit 

comments. 

One of these commenters stated that, 

if APHIS is concerned about leakage 

from the small lots of seed program into 

the general nursery trade, it could put 

restrictions on the types of commercial 

use allowed for seeds imported through 

that program. 

The use of such seed is not the 

concern; the risk of introducing a 

quarantine pest is the concern, which 

needs to be addressed by ensuring that 

the importation of seed from a taxon 

that is a quarantine pest or whose seed 

can introduce and establish a quarantine 

pest is not authorized. 

These commenters also emphasized 

the fact that plant societies have 

information that is useful for our 

regulatory efforts. One commenter 

stated that, given that private plant 

collectors are the people most likely to 

notice potential invasiveness from a 

newly imported species, or one that has 

been in cultivation in the United States 

for some time, the Government can, and 

should, partner with them as an early 

warning system for assessing the 

potential invasiveness of both newly 

imported plants and those that are 

already in the United States. The 

commenter also suggested that APHIS 

create a Web site for collecting 

invasiveness reports from private 

gardeners and plant societies. APHIS 

could then use this information to 

prioritize its plant risk evaluations. 

We agree that plant societies can be 

valuable partners in gathering data on 

risks associated with plants for planting. 

We will discuss with any interested 

plant societies the best way to share 

information about the potential damage 

caused by plants for planting. We are 

open to creating a Web site but want to 

ensure that any collaboration 

mechanism we develop will be as 

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effective as possible for the greatest 

number of interested parties. 

If we finalize our forthcoming 

proposed rule that would revise our 

Departmental permit regulations to 

allow nongovernmental entities to 

import NAPPRA taxa under permit, we 

will be able to work with plant societies 

interested in importing NAPPRA taxa to 

study these taxa and gain more 

information about their risk. We look 

forward to working closely with plant 

societies to gather information about 

and address the risk associated with the 

importation of plants for planting. 

Expanding the Scope of Plants for 

Planting Regulated in the Nursery Stock 

Subpart 

The definition of regulated plant in 

§ 319.37–1 reads: ‘‘Any gymnosperm, 

angiosperm, fern, or fern ally. 

Gymnosperms include cycads, conifers, 

and gingko. Angiosperms include any 

flowering plant. Fern allies include club 

mosses, horsetails, whisk ferns, spike 

mosses, and quillworts.’’ Based on 

comments we received at a May 2005 

meeting, we proposed to amend the 

definition of regulated plant to include 

nonvascular green plants, such as 

mosses and green algae. The proposed 

definition read: ‘‘A vascular or 

nonvascular plant. Vascular plants 

include gymnosperms, angiosperms, 

ferns, and fern allies. Gymnosperms 

include cycads, conifers, and gingko. 

Angiosperms include any flowering 

plant. Fern allies include club mosses, 

horsetails, whisk ferns, spike mosses, 

and quillworts. Nonvascular plants 

include mosses, liverworts, hornworts, 

and green algae.’’ 

Several commenters stated that all 

macroalgae and colonial microalgae, 

rather than just green algae, should be 

included under the definition of 

regulated plant. These commenters 

stated that red (Rhodophyta) and brown 

algae (Phaeophyceae; kelps, Fucus spp., 

etc.) need the same level of evaluation 

as green algae, as evidenced by the 

recent spread and discovery of the 

brown alga wakame, Undaria 

pinnatifida, in San Francisco Bay, as 

well as the continuing spread and 

damage caused by the colonial 

microalga Didymosphenia geminatoa 

(Didymo or ‘‘rock snot’’). 

In most classification systems red and 

brown algae, other macroalgae, and 

colonial microalgae are not included in 

the plant kingdom. Therefore, at this 

time, we do not believe it would be 

appropriate to add them to the 

definition of regulated plant. 

Relationship of the Current Regulations 

to the NAPPRA Category 

Taxa of plants for planting whose 

importation is prohibited are listed in 

the regulations in § 319.37–2. Specific 

restrictions on the importation of 

various taxa of plants for planting are 

found elsewhere in the regulations, 

mostly in §§ 319.37–5, 319.37–6, 

319.37–7, and 319.37–8. We proposed to 

establish the process for adding taxa of 

plants for planting to the NAPPRA lists 

in a new § 319.37–2a. 

A few commenters asked about the 

relationship between the list of 

prohibited taxa in § 319.37–2 and the 

proposed lists of taxa whose 

importation is not authorized pending 

pest risk analysis (i.e., the NAPPRA 

lists). One asked us to clarify that the 

NAPPRA lists are not replacing the lists 

of prohibited and restricted taxa. This 

commenter also suggested that we move 

any taxa that are prohibited but for 

which a PRA has not been conducted to 

the NAPPRA list. Another commenter 

asked whether the prohibited taxa will 

automatically be placed on the NAPPRA 

lists and whether the prohibited taxa 

would then remain on NAPPRA until a 

PRA has been conducted. A third 

commenter asked whether an importer 

could request a taxon to be moved from 

the list of prohibited taxa to the 

NAPPRA list, saying that doing so 

would give importers a means to 

comment on the designation of a taxon 

as prohibited. 

The NAPPRA lists are not replacing 

the list of prohibited taxa, or the 

separate lists of taxa for which there are 

specific requirements for importation. 

While the NAPPRA lists exist to prevent 

the importation of taxa of plants for 

planting that pose a risk but for which 

a PRA has not been conducted, the risks 

associated with all the prohibited taxa 

in § 319.37–2 were analyzed when the 

taxa were added to the list. We may 

decide to reevaluate some of these taxa 

in light of current scientific evidence; in 

order to remove any taxon from the list 

of prohibited taxa, we would need to 

conduct a PRA and subsequent 

rulemaking. 

In response to the third commenter’s 

concern, we have in the past conducted 

PRAs for taxa that are listed on the 

prohibited list based on public requests, 

and we will continue to do so. Members 

of the public are free to contact us and 

request a PRA for any taxon on the 

prohibited list. Requests must be made 

in accordance with § 319.5. 

Prohibited taxa will not automatically 

be added to the NAPPRA lists. However, 

we may decide to list some taxa as both 

prohibited and NAPPRA to make it 

easier for readers to determine whether 

the taxa can be imported. For example, 

the importation of Cedrus spp. from 

Europe is prohibited because Douglas fir 

canker and seedling disease, both 

quarantine pathogens, are present in 

Europe, and Cedrus spp. is a host of 

those pathogens. If we receive evidence 

that one of those pathogens has spread 

to Asia, we would add Cedrus spp. to 

the NAPPRA list for Asia and for other 

countries not exporting Cedrus spp. to 

the United States, because there is a risk 

that the pathogen could spread to those 

countries before they decide in the 

future to export Cedrus spp. However, if 

someone reading the NAPPRA list on 

the plants for planting Web site saw that 

the importation of Cedrus spp. from 

Asia was not authorized pending pest 

risk analysis, that person might not 

think to check the list of prohibited 

articles in § 319.37–2 in order to 

determine that the importation of 

Cedrus spp. is prohibited from Europe, 

and thus might apply for an import 

permit for Cedrus spp. grown in 

Denmark. For ease of reading, we would 

add Cedrus spp. from Europe to the 

NAPPRA list as well. In general, taxa 

that are listed as prohibited taxa from 

certain countries would also be listed as 

NAPPRA from those countries when 

their importation from new countries is 

not authorized under NAPPRA. 

We are planning a proposed rule to 

completely reorganize the plants for 

planting regulations. As currently 

planned, one goal of this proposal 

would be to make it much easier to 

determine at a glance what restrictions 

and prohibitions apply to the 

importation of a taxon. 

We stated in the economic analysis 

accompanying the proposed rule that, 

under the new NAPPRA program, we 

would prohibit the importation of a 

plant taxon that has been scientifically 

shown to be a quarantine pest or a host 

of a quarantine pest prior to its 

importation. 

One commenter stated that if a taxon 

has already been scientifically shown to 

be a pest or host of a pest, it should 

already have been assessed and 

appropriate action should be taken. The 

commenter stated that the NAPPRA 

program does nothing new and does not 

‘‘increase protection’’ at all—it only 

increases bureaucratic workload, as the 

USDA already has the power (as well as 

emergency powers) to restrict the entry 

of organisms that are known to be pests. 

The commenter stated that the NAPPRA 

category was thus duplicative of 

existing powers and regulations, going 

against the instruction in Executive 

Order 12866 to avoid duplicative 

regulations. 

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The commenter is correct that, in 

situations that we judge to pose an 

emergency, we can take action 

immediately to stop the importation 

into the United States of a taxon whose 

importation poses a risk of introducing 

a quarantine pest. However, in the past, 

we have relied on the comprehensive 

PRA and rulemaking processes for 

reviewing the scientific literature and 

inviting the public to comment on 

restrictions we are contemplating for 

specific taxa of plants for planting. The 

NAPPRA category allows us to be 

transparent and engage the public by 

publishing notices, making available the 

scientific justification for our decisions, 

and requesting comments, while 

avoiding the burden of conducting a 

comprehensive PRA and completing 

rulemaking before putting restrictions in 

place, which previously had been our 

common practice. The NAPPRA 

category thus does not duplicate current 

efforts but provides us with a way to 

more efficiently utilize our limited 

resources, to employ transparent 

processes in reaching and 

communicating our decisions, and to 

allow for public participation in the 

process. 

We proposed to use the NAPPRA 

process to list as not authorized for 

importation both taxa of plants for 

planting that are quarantine pest plants 

(i.e., noxious weeds) and taxa that are 

hosts of quarantine pests. 

Four commenters asked about the 

relationship of the NAPPRA list of taxa 

of plants for planting that are quarantine 

pest plants and the list of noxious 

weeds. One recommended that we add 

plants for planting that are not approved 

for importation to the noxious weed list. 

We appreciate the opportunity to 

clarify our plans with regard to taxa of 

plants for planting listed in the 

NAPPRA category as quarantine pests. If 

we conduct a WRA for a taxon listed in 

NAPPRA as a quarantine pest, and the 

WRA concludes that the importation or 

interstate movement of a taxon of plants 

for planting should only be allowed 

under a permit specifying controlled 

conditions intended to prevent its 

escape, we would propose to add the 

taxon to the list of noxious weeds in 7 

CFR part 360. If the WRA does not 

conclude that the taxon should be 

added to the noxious weed list, we 

would also conduct a PRA for the taxon; 

if the PRA indicates that the importation 

of the taxon should be prohibited or 

only allowed subject to specific 

restrictions because the taxon is a host 

for a quarantine pest or pests, we would 

amend the plants for planting 

regulations accordingly. We would not 

add taxa of plants for planting on the 

NAPPRA lists to the noxious weed list 

unless the results of our WRA supported 

a decision to do so. 

One commenter asked how APHIS 

would ensure that taxa listed in 

NAPPRA as quarantine pests are not 

imported as pure lots of seed or as 

contaminants of seed lots. 

With respect to pure lots of seed, such 

importation will not be authorized 

under the final rule. We will add the 

NAPPRA list of quarantine pest plants 

and hosts of quarantine pests, including 

regulated plant parts, to the Plants for 

Planting Manual (previously known as 

the Nursery Stock Manual) for the 

benefit of our port inspectors and the 

public. 

With regard to contaminants of other 

seed lots, it could be operationally 

difficult to exclude such contamination 

until we provide adequate identification 

criteria to our inspectors. Seeds of taxa 

listed in NAPPRA as quarantine pest 

plants may be difficult to distinguish 

from seed of taxa that are not subject to 

any specific importation restrictions, 

meaning that it would be difficult to 

determine which contaminated lots of 

seed could nevertheless be imported 

and which would need to be destroyed 

or reexported. As noted earlier, this 

final rule is part of an ongoing, broader 

effort to revise the plants for planting 

regulations and other procedures to 

better address the risks associated with 

plants for planting. After we have 

implemented the final rule, we will 

continue to examine the potential 

pathway for importation of 

nonauthorized taxa represented by 

contamination of seed lots and 

determine the best way to mitigate the 

risk associated with it. 

Economic Issues 

One commenter stated that the costs 

of implementation of the proposed rule 

must be reasonable, since they are most 

likely going to be transferred to the 

retail sector and ultimately the 

consumer. 

There are no direct costs associated 

with the implementation of the rule. 

Initially, we will use current resources 

to inspect shipments of taxa to 

determine whether any NAPPRA-listed 

plant for planting are present and to 

conduct PRAs and WRAs. Listing taxa 

as NAPPRA would, in the worst case, 

only cause retailers to be unable to earn 

revenues associated with risky plants 

that they will not be able to import. 

However, this impact will likely be 

minuscule as the plants propagated and 

grown in the United States will remain 

available. There is some burden 

associated with requesting removal of a 

taxon from the NAPPRA list. However, 

as it is optional to request removal of a 

taxon from the NAPPRA category, we do 

not anticipate that a retailer or other 

importer would make such a request 

unless the benefits outweighed the 

costs, given that most taxa in the world 

would be allowed to be imported 

subject to the general restrictions in the 

plants for planting regulations. 

One commenter stated that, in 

discussions of the costs of invasive 

species, costs and risks are generally 

inflated, and unnecessary controls are 

instituted on the basis of these inflated 

risks and costs. The commenter also 

stated that most ‘‘invasive species’’ are 

not economically harmful or 

environmentally harmful, meaning that 

control costs are unnecessary. 

Using the NAPPRA category will not 

involve us making a determination that 

a taxon of plants for planting is 

invasive, but rather that it is a 

quarantine pest or a host of a quarantine 

pest. As the definition of quarantine 

pest requires that the pest be of 

potential economic importance, part of 

what we will consider in making the 

determination that a taxon is a 

quarantine pest or a host of a quarantine 

pest will be the specific damage the 

taxon, or the quarantine pest for which 

it is a host, causes to U.S. agricultural 

and environmental resources. In the 

absence of such damage, a taxon would 

not be designated as a quarantine pest. 

We believe this addresses the 

commenter’s concern. 

In the Background section of the 

proposed rule, we stated that the 

increased diversity and volume of 

plants currently being imported was 

what led us to determine that the 

current regulations need to be enhanced 

to provide a level of phytosanitary 

protection commensurate with the risks 

posed by the importation of plants for 

planting. 

One commenter stated that, if in fact 

there is an increased diversity and 

volume of plants currently being 

imported, this is a clear indication of 

the will of the American people, and 

that the people have determined by 

their actions that our nation’s economic 

interests and environmental well-being 

are served by increased imports. The 

commenter stated that the American 

people would not import plants if this 

were not in their best interest to do so. 

Importing a taxon of plants for 

planting that is a quarantine pest or that 

is a host of a quarantine pest may 

provide revenues to the importer and a 

desired ornamental plant for the 

consumer (for example), but the plant 

may also end up causing widespread 

damage to U.S. agricultural or 

environmental resources, or the plant 

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31202 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

16Pimentel, D., Lach, L., Zuniga, R., and 

Morrison, D. 2000. Environmental and economic 

costs of nonindigenous species in the United States. 

BioScience 50:53–65. 

17Pimentel, D., Zuniga, R., and Morrison, D. 

2005. Update on the environmental and economic 

costs associated with non-indigenous species in the 

United States. Ecological Economics 52:273–288. 

The economic analysis accompanying this final rule 

uses the updated estimates of damage from invasive 

species in Pimentel et al. (2005). 

18Lodge, D. M., Williams, S., MacIsaac, H. J., 

Hayes, K. R., Leung, B., Reichard, S., Mack, R. N., 

Moyle, P. B., Smith, M., Andow, D. A., Carlton, J. 

T., McMichael, A. 2006. Biological invasions: 

Recommendations for U.S. policy and management. 

Ecological Applications 16:2035–2054. 

may be infested with a pest that causes 

such damage. As individual importers 

and consumers may not be aware of the 

risks associated with the importation of 

such plants for planting, and often do 

not bear the cost and burden of 

remedying the resulting negative 

impacts to the community as a whole, 

we regulate the importation of plants for 

planting to help avert such damage and 

its associated costs. 

One commenter stated that the 

economic analysis prepared for the 

proposed rule considered the costs 

associated with the introduction of 

quarantine pests but not the potential 

economic benefits from importing new 

species. The commenter stated that 

many multimillion-dollar crops such as 

amaranth, milk thistle (Silybum 

marianum), and St. John’s wort were 

formerly considered weeds, meaning 

their importation would not have been 

authorized under NAPPRA. The 

commenter stated that many countries 

now forbid the export of living 

organisms because they recognize the 

economic value of such species and 

claim sovereignty over their 

biodiversity. The commenter 

recommended that we consider 

potential benefits as well as potential 

costs associated with species added to 

the NAPPRA lists. 

We appreciate the commenter’s 

suggestion. As we are not adding any 

specific taxa to the NAPPRA lists in this 

final rule, any discussion of the 

economic benefits associated with 

importing taxa that we add to the 

NAPPRA in the future would be 

speculative. On the other hand, the 

examples of damage caused by the 

introduction of pests into the United 

States via the importation of plants for 

planting can be easily quantified, which 

is why we included that discussion. 

If we receive a request to remove a 

taxon of plants for planting from the 

NAPPRA list, we would conduct a PRA 

to more fully examine the risks 

associated with the importation of the 

taxon. If the PRA indicates that the 

importation of the taxon should be 

prohibited or allowed subject to 

restrictions, we will initiate rulemaking 

to amend the regulations accordingly. 

We will include with the proposed rule 

an economic analysis that takes into 

account both the potential benefits 

associated with the importation of the 

taxon and the costs of control actions 

that may become necessary if it is 

imported. (If the PRA indicates that the 

taxon can be safely imported subject to 

the general restrictions in the plants for 

planting regulations, we will publish a 

notice indicating that we have 

determined that the taxon can be 

removed from the NAPPRA list and 

making the PRA available for comment.) 

As discussed earlier, the fact that a 

plant taxon is called a weed would not 

be enough of a reason to add it to the 

NAPPRA list. We would need evidence 

of its economic importance, based on 

the damage it causes. It would also need 

to be either not present in the United 

States or present but not widely 

distributed and under official control. 

Amaranth is a common food crop in 

Latin America and has been grown in 

the United States for decades without 

record of causing economically 

important damage. Milk thistle is listed 

as a noxious weed by three States, so we 

would likely have considered restricting 

its importation had the NAPPRA 

category been in place when milk thistle 

was first imported. St. John’s wort is 

native to the United States and so would 

not have been eligible for consideration 

as a quarantine pest. Of the three plant 

taxa the commenter cites, then, only one 

would have actually been considered for 

listing in NAPPRA, consistent with the 

fact that the importation of most taxa 

will continue to be allowed when we 

implement the NAPPRA category. 

In discussing the expected benefits of 

implementing the proposed NAPPRA 

category, the economic analysis 

accompanying the proposed rule 

discussed the costs associated with 

control of invasive species in the United 

States. One publication cited in this 

discussion was Pimentel et al. (2000),16

which estimates that nonindigenous 

plant pathogens cause $21 billion in 

U.S. crop losses each year and that 

growers spend approximately $500 

million annually on fungicides to 

combat these pathogens. 

One commenter stated that Pimentel 

et al. (2000) has been shown to be 

pseudoscientific and an example of 

serious misrepresentation, as many of 

the costs are grossly overinflated and 

have no actual economic basis 

whatsoever. The commenter cited as an 

example the methodology that Pimentel 

et al. (2000) used to determine 

economic losses associated with cats. 

While, as the commenter noted, cats are 

not plants, the commenter stated that it 

is important to note this as an example 

of the poor quality of Pimentel et al.’s 

data and reasoning. 

We have found no evidence from 

reliable sources that would suggest that 

Pimentel et al. (2000), as well as the 

subsequent updated publication 

Pimentel et al. (2005),17 has been shown 

to be ‘‘pseudoscientific’’ or ‘‘an example 

of a serious misrepresentation’’ of the 

costs. The updated Pimentel et al. 

(2005) study has been cited in more 

than 500 scientific journal articles and 

research reports. Pimentel et al. (2000) 

and (2005) are comprehensive studies of 

the annual costs associated with the 

presence of invasive species in the 

United States. The costs are compiled 

from more than 140 various studies, 

publications, journal articles, and 

agency reports. The costs associated 

with invasive species, as reported in 

Pimentel et al. (2000) and (2005), 

include plants, mammals, fish, birds, 

reptiles, arthropods, mollusks, weeds, 

and plant pathogens, to name a few. 

Pimentel et al. (2005) estimated the cost 

of environmental damages associated 

with invasive alien pests into the United 

States at $120 billion annually; 

however, only the costs associated with 

invasive plant pests were considered 

pertinent to the NAPPRA proposal. An 

Ecological Society of America report 

(Lodge et al. (2006) 18) finds that the 

Pimentel et al. (2005) may actually 

underestimate the net costs of invasive 

species to society by examining ‘‘only a 

small subset of harmful species,’’ and 

contends that the net costs are actually 

much higher than they appear in 

Pimentel et al. (2005). 

The commenter provided no 

comments specific to the Pimentel et al. 

(2000) estimate of the damage associated 

with invasive species. APHIS finds no 

basis for the assertion that Pimentel et 

al. (2000) displays poor quality in its 

data and reasoning. 

One commenter specifically 

addressed the estimate Pimentel et al. 

(2000) provide for damage from invasive 

species. Pimentel et al. (2000) state that 

weeds (both native and non-native) 

cause an overall crop reduction of 12 

percent per year out of the more than 

$267 billion potential value of all U.S. 

crops, which leads to a $32 billion 

figure. Following this, Pimentel et al. 

(2000) asserts, based on the results of a 

single survey, that 73 percent of weeds 

in crop fields are nonindigenous, 

yielding an estimate of $23.4 billion lost 

to non-native weeds. (Another 

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19Costello, C. and McAusland, C. 2003. 

Protectionism, trade, and measures of damage from 

exotic species introductions. Am. J. Agricult. Econ. 

85:964–975. 

commenter stated that costs of crop 

reductions from pests include native 

pests, and so overstate the impact from 

introduced pests; the first commenter’s 

summary of Pimentel et al. (2000) is 

correct.) 

The commenter stated that, in the 

interest of good science, more 

representative of reality, a number of 

statistical surveys should be done 

multiple times within the year, in many 

different regions of the country, on 

different crops, and in different years. 

Data collection of this nature would 

better elucidate the actual influence of 

both native and non-native weeds by 

including: Different weed life cycles 

which influence crop growth at different 

times, different climates and conditions 

in the United States, certain crops 

which may naturally compete with 

weeds better than others, and the 

distribution of weeds under different 

climatic conditions. 

We agree with the commenter that it 

would be preferable to have more data 

available regarding the cost of the 

damage associated with non-native 

weeds in general. However, Pimentel et 

al. (2000) and the updated Pimentel et 

al. (2005) nevertheless provide a general 

estimate of the scope of the problem. As 

discussed earlier, this final rules does 

not impose broad restrictions or 

prohibitions on the importation of taxa 

of plants for planting, but rather allows 

us to impose restrictions on specific 

taxa based on scientific evidence that 

they can damage U.S. agricultural and 

environmental resources. The Pimentel 

et al. (2000) estimate indicates the 

magnitude of the costs incurred due to 

damage from plant species, even though 

it may not be an exact figure. 

The commenter went on to note that 

Pimentel et al. (2000) then add $3 

billion spent on weed controls to the 

earlier estimate of $23.4 billion in lost 

crop yields, for a total of $26.4 billion. 

However, the commenter stated, the 

study does not take into account the 

costs that native weeds inflict by 

replacing non-native weeds; thus still 

contributing to crop losses and requiring 

associated control methods. To their 

credit, Pimentel et al. (2000) 

acknowledge the fact that native weeds 

would replace non-native varieties. On 

the other hand, Pimentel et al. (2000) 

state that any potential overestimation 

of the impact of non-native weeds 

would be canceled out by other 

potential losses such as environmental 

and public health damages resulting 

from herbicide and pesticide 

application. The environmental and 

public health damages due to herbicide 

and pesticide application are certainly 

valid concerns. Nevertheless, the 

commenter stated, it is not logical to 

imply that the risks of pesticides and 

herbicides would be much less or not 

exist if native weeds only were found 

within crop fields. Crop fields with only 

native weeds present would still require 

the application of herbicide and 

pesticides to control non-crop plants 

and other pests. Thus, the $26.4 billion 

figure reported by Pimentel et al. (2000) 

attributed to non-native weeds may still 

be incurred anyway, even if native 

weeds only were found in crop fields. 

The commenter added that this point 

was made in the study by Costello and 

McAusland (2003),19 who criticized 

Pimentel et al. (2000) for overestimating 

the true marginal cost of the 

noninvasive species surveyed. 

Costello and McAusland (2003) 

indeed contend that the estimates found 

in Pimentel et al. (2000) tend to 

overstate the marginal costs of nonnative species with respect to 

agricultural activity, in that costs of the 

spread of native species are not 

deducted from the estimated monetary 

costs associated with biological 

invasions in the United States. 

However, Costello and McAusland 

(2003) also argue that the estimates 

found in Pimentel et al. (2000), as well 

as the estimates from the U.S. Congress’ 

Office of Technology Assessment on 

which much of Pimentel et al. (2000)’s 

analysis is based, may be viewed as 

underestimates, as they ‘‘tend to 

overlook damage to nonmonetized 

assets such as functioning ecosystems; 

these estimates may be viewed as lower 

bounds on the total costs associated 

with invasives.’’ Costello and 

McAusland (2003) argue that the 

practice of determining measures based 

solely on agricultural damage can 

produce ‘‘misleading indicators of how 

restrictions to trade affect total losses 

arising from exotic species 

introductions.’’ In their view, treating 

damages arising in agriculture as a 

proxy for overall costs related to 

invasive species may also mislead us 

with regard to not only the magnitude 

of these costs but other qualitative 

effects that trade policy has on the 

problem of invasive species. As 

discussed earlier, preventing damage to 

U.S. environmental resources is a goal 

of the NAPPRA category, along with 

preventing damage to U.S. agricultural 

resources. In this context, Costello and 

McAusland (2003) indicate that 

Pimentel et al. (2000) underestimate the 

total costs associated with invasive 

species. 

The economic analysis also cited the 

National Plant Board’s 1999 estimate of 

the cost of damage caused by invasive 

plant pests, which was $41 billion 

annually in lost production and in 

prevention and control expenses. The 

two commenters who addressed 

Pimentel et al. (2000) did not provide 

any comments with respect to this other 

estimate. It remains clear to us that the 

invasive plant pests cause large-scale 

damage to U.S. agricultural and 

environmental resources, meaning the 

actions taken to prevent the 

introduction of quarantine pests via the 

importation of individual taxa of plants 

for planting into the United States will 

provide substantial economic benefits. 

Other Measures To Address the Risk of 

Importing Plants for Planting 

Commenters also suggested several 

measures to address the risk associated 

with imported plants for planting that 

are beyond the scope of the proposed 

rule. We will consider these comments 

as we continue our ongoing revision of 

the plants for planting regulations. The 

measures suggested by commenters are 

discussed below. 

Mandatory Treatment 

Four commenters recommended that 

we require treatment of plants upon 

arrival. Two of these commenters stated 

that mandatory disinfection should be 

considered. One stated that the 

invasiveness of plant pests and 

pathogens is a problem that could be 

handled by the application of a general 

fungicide or insecticide upon entry or 

from the deliverer. Another 

recommended treatment of high-risk 

horticultural plants or plant products. 

Another commenter recommended 

that we consider requiring all imported 

plants to undergo a disinfestation 

treatment regardless of whether pests 

have been detected in the shipment, but 

added that research into effective and 

environmentally safe treatments is 

greatly needed. 

When the plants for planting 

regulations were established, we 

required fumigation with methyl 

bromide for all shipments of imported 

plants. While this addressed the risk 

associated with insect pests that 

infested plants for planting, it had no 

effect on pathogens that infected plants 

for planting; no disinfectant treatment 

for plants for planting is available. 

Treatment does not address plants that 

are quarantine pests, either, since any 

plant that survived the treatment would 

still be a quarantine pest. 

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31204 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

In part due to the fact that plants for 

planting are now imported in large 

quantities for immediate sale to U.S. 

consumers, imported plants for planting 

are no longer routinely fumigated with 

methyl bromide or otherwise treated as 

a condition of entry; the adverse effects 

of fumigating plants for planting with 

methyl bromide are quite severe, which 

means that importing plants for planting 

for immediate sale to U.S. consumers 

would be impractical if fumigation were 

required. 

We will not resume routine 

fumigation with methyl bromide. Under 

the Montreal Protocol and Subchapter 

VI of the Clean Air Act (42 U.S.C. 7671– 

7671p), the United States is obligated to 

minimize its use of substances such as 

methyl bromide that deplete 

stratospheric ozone. In addition, Article 

2 of the WTO SPS Agreement requires 

that any restrictions APHIS imposes on 

the importation of plants for planting to 

be based on scientific principles and not 

maintained without sufficient scientific 

evidence; as mentioned previously, 

routine fumigation was conducted 

regardless of whether there was 

evidence that the plants for planting 

offered for importation could serve as a 

pathway for the introduction of a 

quarantine pest. 

We would consider imposing a 

routine disinfestation requirement in 

the future if a treatment becomes 

available that is effective and does not 

have the potential for significant 

impacts on the human environment, 

and if we determine that such a 

requirement is necessary to achieve a 

more appropriate level of protection 

against the risk posed by the 

importation of plants for planting. 

Inspections 

We received several comments on the 

inspection of imported plants for 

planting at ports of entry before they are 

allowed to enter the United States. 

Two commenters expressed support 

for additional staffing of inspection 

stations and plant pathology 

laboratories that, in their view, would 

be required to implement the proposed 

rule. 

Implementing the proposed rule will 

not require increased resources for 

inspection; it will simply require 

current inspectors to be able to identify 

the taxa that we list as NAPPRA and 

ensure that they are not imported into 

the United States. We will communicate 

changes in the list of NAPPRA taxa in 

the same manner we currently 

communicate changes in the restrictions 

or prohibitions that are in the 

regulations governing the importation of 

plants for planting, by developing 

identification aids and updating our 

manuals. 

Two commenters stated generally that 

increasing the intensity of inspections 

should be considered; one added that 

plant inspection stations should be 

upgraded. 

A third commenter opposed the 

proposed rule and stated that, instead of 

implementing it, we should implement 

several measures to increase the 

intensity and effectiveness of 

inspection. The commenter stated that 

there simply must be more actual 

inspections of imported plants and 

plant products, which is the best way to 

stop imported pests is at the port of 

entry. The commenter stated that 

inspectors must be trained in plant 

identification, entomology, plant 

pathology, and nematology. 

The commenter stated that an 

inspection must consist of more than 

just checking paperwork. The 

commenter stated that, in the USDA 

export certification manual, nursery 

stock for export is to be inspected at a 

100-percent rate if practical; the 

commenter stated that 100 percent of 

imported nursery stock should also be 

inspected upon arrival, not just a small 

percentage as is being presently done by 

USDA. For example, the commenter 

stated, Costello and McAusland (2003) 

referred to a joint report from APHIS 

and the U.S. Forest Service that states: 

‘‘Containerized cargo is usually packed 

tightly in the trailer and often stacked to 

the roof, preventing inspection of all but 

a small percentage of the shipment 

visible at the tailgate (i.e. open doors).’’ 

The commenter stated that incomplete 

inspections, at ports of entry, open the 

United States to risks which could 

otherwise be curtailed. The commenter 

stated that if a complete inspection 

cannot be done at the port, a complete 

inspection of all imported plants should 

be done as they are unloaded at their 

final destination (and not just the small 

portion visible at a tailgate). This, the 

commenter stated, will not only screen 

for quarantine pests but will also catch 

illegal taxa. 

The commenter also suggested 

performing laboratory tests on high-risk 

plants, requiring post-entry quarantines 

to be conducted in covered greenhouses, 

and performing followup checks on 

imported plants not in post-entry 

quarantine. 

We appreciate the commenters’ 

suggestions. However, several factors 

limit our ability to increase the intensity 

of our inspections. Limited resources 

play a role, as the importation of plants 

for planting continues to increase while 

our resources for inspecting imported 

plants for planting are expected to 

remain steady or decrease in the coming 

years. In addition, as discussed in the 

foundation document that accompanied 

the proposed rule, inspection is 

approaching, or may have reached, the 

limits of its operational efficacy due to 

the increased volume and diversity of 

importations. If more resources become 

available for inspection of imported 

plants for planting, we will certainly 

consider means by which we can make 

inspections more intense and effective. 

The NAPPRA category will allow us to 

direct inspectors’ attention to taxa of 

plants for planting that are quarantine 

pests or hosts of quarantine pests and 

thus maximize the effectiveness of the 

current inspection process. 

Several factors make the third 

commenter’s suggestions impractical. 

Inspecting 100 percent of imported 

nursery stock would delay release of 

perishable commodities, especially if 

resources to conduct inspections were 

not increased, thus potentially making 

many shipments of imported plants for 

planting worthless. In addition, past a 

certain point, inspecting additional 

plants does little to increase the 

probability of detecting a pest; to 

maximize the effectiveness of our 

limited resources, we inspect according 

to statistical plans that are designed to 

find pests at low levels of infestation 

with a high level of confidence. If a 

quarantine pest that can be detected 

through inspection is present in a 

shipment of plants for planting, it is 

likely to have infested plants in the 

shipment at a high rate, meaning that 

these inspections are highly likely to 

find any available visual evidence of 

infestation by quarantine pests. 

These statistical plans demand that 

the sampling we take is truly random, 

meaning that we inspect plants from all 

areas in a container or box, not just 

those at the top or on the sides. The 

quote the commenter cited from 

Costello and McAusland (2003) was 

drawn in turn from a PRA that 

discussed the importation of solid wood 

packing material (SWPM). That PRA is 

specific to challenges in inspecting 

SWPM, and in this context discusses the 

challenge of removing or devanning 

cargo in order to facilitate inspection of 

SWPM. This challenge does not apply to 

inspection of plants for planting. 

Inspectors select random samples of 

plants for planting from all areas within 

containerized shipments of plants for 

planting in order to ensure that our 

inspections are effective. Removing 

individual plants from various areas 

within a container is easier than 

removing the SWPM, since the SWPM 

typically fills the container and 

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provides a structure for the contents of 

the container. 

As the commenter noted, the nursery 

stock export manual states that the 

inspection level should be as close to 

100 percent as practical; in practice, 

with plants for planting shipments 

containing thousands of articles, 100 

percent inspection is rarely practical for 

either import or export of plants for 

planting. The nursery stock export 

manual also provides a minimum level 

of sampling and statistical plans for 

conducting sampling of fewer than 100 

percent of the articles in a shipment of 

plants for planting, consistent with the 

inspections we conduct for imported 

plants for planting. 

Laboratory tests, requirements for 

post-entry quarantine in covered 

greenhouses, and followup checks on 

imported plants not in post-entry 

quarantine, if implemented as general 

restrictions as the commenter suggests, 

would vastly increase the difficulties 

and potentially the cost associated with 

the importation of plants for planting. 

Requiring laboratory tests of high-risk 

plants would further delay the 

importation of perishable commodities. 

In addition, without having identified 

quarantine pathogens that might be 

associated with the plants, it would be 

impossible to test for them. For most 

taxa, there is no easy-to-administer test 

or suite of tests that encompasses all 

major known pathogens, and even such 

a test or suite of tests would miss 

emerging pathogens for which reliable, 

cost-effective diagnostic methods have 

not yet been developed but that have 

been observed on plants for planting. 

Our inspectors are well-trained in 

plant identification, entomology, plant 

pathology, and nematology. In addition, 

if they find any plant pests that are 

beyond their expertise, they have 

additional resources to call upon in 

order to make a final determination 

regarding whether to allow a shipment 

of plants for planting to enter the United 

States. If our inspectors find a pest in a 

shipment, we will hold the shipment 

back from entering U.S. commerce until 

and unless we can verify that the 

damage or symptoms are not caused by 

a quarantine pest. 

Moreover, the increased inspections 

the commenter recommends would not 

address all the problems that will be 

addressed by implementation of the 

NAPPRA category. As discussed in the 

proposed rule, inspection as a sole 

mitigation measure may not always 

provide an adequate level of protection 

against quarantine pests, particularly if 

a pest is rare, small in size, borne within 

the plant, or an asymptomatic plant 

pathogen. 

Requiring that post-entry quarantine 

occur in covered greenhouses would 

greatly increase the cost of importing 

any plants in post-entry quarantine and 

would only reduce the risk associated 

with plants that are already required to 

be imported into post-entry quarantine, 

not any other plants that pose a risk of 

introducing quarantine pests into the 

United States. Followup checks on 

plants for planting imported into the 

United States would be virtually 

impossible to conduct given the lack of 

a traceability infrastructure for plants 

and the diversity of destinations for 

imported plants for planting. 

In summary, the commenter’s 

suggestions would not adequately 

address the risk associated with the 

importation of plants for planting, and 

we continue to find the implementation 

of the NAPPRA category to be necessary 

to provide a more appropriate level of 

protection. This strategy is consistent 

with the National Plant Board’s 

Safeguarding Review, referred to earlier 

in this document, which stated: ‘‘While 

port of entry inspection must continue 

to play an important role in the 

exclusion of invasive plant pests, the 

historic view that this activity can 

function as the focal point for exclusion 

must be abandoned. A new risk based 

management strategy that requires 

compliance and mitigation of pest risk 

at origin can both reduce risk and 

enable expedited entry.’’ 

One commenter, noting our 

discussion in the proposed rule of the 

limits of inspection, stated that the 

ineffectiveness of inspection in the 

cases cited above indicated that USDA 

is failing to do its job, and that the 

proposal constituted a plan to divert 

manpower and resources from 

inspection to a completely spurious risk 

assessment program. 

Inspection will continue to be a key 

component of our efforts to prevent the 

introduction of quarantine pests via 

imported plants for planting. One way 

we will gain information about 

quarantine pest threats is when 

inspectors find quarantine pests 

infesting shipments of plants for 

planting offered for importation at a port 

of entry. Acknowledging the limitations 

of visual inspection does not constitute 

a failure of visual inspection; rather, it 

indicates that safeguards in addition to 

visual inspection are necessary to 

protect U.S. agricultural and 

environmental resources against the 

introduction of quarantine pests. The 

NAPPRA category is one additional 

safeguard in this effort. 

In addition, we are not diverting 

resources from inspection to risk 

assessment as part of this proposal; our 

inspections will continue at the same 

level as they have in the past. 

With regard to the term 

‘‘asymptomatic plant pathogen,’’ this 

commenter also asked how an organism 

can be considered pathogenic if there 

are no symptoms associated with 

infection. 

Many plant pathogens are 

asymptomatic at various points in their 

life cycles. Phytophthora spp. pathogens 

are one example. We would not expect 

a visual inspection to be effective at 

detecting a pathogen if the pathogen is 

at an asymptomatic stage of its life 

cycle. 

Identification 

One commenter was unable to 

determine whether specific and positive 

species identification is required for all 

imported plants for planting. The 

commenter stated that a challenge to all 

APHIS inspectors is that many 

importations are currently not required 

to be properly labeled. As such, 

determining which ones are risky based 

only upon a generic designation, or the 

designation of the primary species but 

not those used as packing, decoration, 

or additional materials, becomes 

impossible for a responsible inspector. 

Rather than put such an unfair burden 

on the hard-working inspectors, the 

commenter stated, the regulations 

should require that all species be 

properly identified. It is true that some 

species are hard to properly identify 

even by experts, the commenter stated, 

but certainly proper identity to the best 

general consensus would be acceptable 

and still allow for the variability that 

occurs in taxonomy. 

We appreciate the commenter’s 

concerns. In the regulations, the 

introductory text of § 319.37–4(a) sets 

out the identification requirements for 

imported plants for planting. The 

identification requirements are as 

follows: 

The phytosanitary certificate must identify 

the genus of the article it accompanies. When 

the regulations in [the plants for planting 

regulations] place restrictions on individual 

species or cultivars within a genus, the 

phytosanitary certificate must also identify 

the species or cultivar of the article it 

accompanies. Otherwise, identification of the 

species is strongly preferred, but not 

required. Intergeneric and interspecific 

hybrids must be designated by placing the 

multiplication sign ‘‘x’’ between the names of 

the parent taxa. If the hybrid is named, the 

multiplication sign may instead be placed 

before the name of an intergeneric hybrid or 

before the epithet in the name of an 

interspecific hybrid. 

Thus, we require identification to the 

species or cultivar level when such 

identification is necessary for the 

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inspector to make a decision. Because 

species are listed as NAPPRA in 

accordance with the plants for planting 

regulations, the phytosanitary certificate 

accompanying any shipment containing 

plants from genera in which species are 

listed as NAPPRA will be required to 

identify the species or cultivars of the 

plants in that shipment. 

Any taxon of plants for planting 

included in a shipment, including 

packing, decoration, or additional 

material, must be accounted for in its 

accompanying documentation, and our 

inspectors inspect them all for the 

presence of quarantine pests. 

One commenter asked whether 

identification problems could be a 

weakness in the proposal. The 

commenter proposed a hypothetical 

situation in which, if the commenter 

wished to bring a plant into the country 

that was or might be considered a risk, 

he would label it with the name of a 

plant on APHIS’ safe list with similar 

characteristics. Secondly, the 

commenter would send through plant 

inspections only small seedlings or 

cuttings. The commenter would assume 

that the quality of APHIS taxonomists 

was such that they might well not be 

able to tell the difference between the 

high-risk plant he was trying to import 

and the safe plant whose name he used. 

If caught, the commenter stated, such a 

hypothetical miscreant could blame his 

taxonomist. 

With a few, limited exceptions, all 

imported plants for planting must be 

accompanied by a phytosanitary 

certificate with the identification 

information given above. It is important 

to note that the phytosanitary certificate 

is not issued by the exporter or importer 

but by the NPPO of the exporting 

country, which is responsible under the 

IPPC for ensuring that the phytosanitary 

certificate is accurate, complete, and 

current with respect to its description of 

the articles it accompanies. Although 

the exporter may supply identification 

information, the NPPO of the exporting 

country must verify it. 

Nevertheless, we do receive 

phytosanitary certificates with incorrect 

identification information. In those 

cases, we would hold the NPPO of the 

exporting country responsible, along 

with the exporter and importer. Both 

civil and criminal penalties are 

available should we discover such a 

violation. 

We should also note that the NAPPRA 

category does not establish a ‘‘safe list.’’ 

Taxa of plants for planting will be listed 

as NAPPRA when we make the 

determination that they are quarantine 

pests or hosts of quarantine pests, based 

on scientific evidence. Most taxa will 

continue to be allowed to be imported 

subject to general restrictions, one of 

which is the phytosanitary certificate 

requirement mentioned here. 

Postentry Quarantine 

One commenter recommended, as an 

action to take beyond the 

implementation of the NAPPRA 

category, that we require additional 

plant types to be cleared through 

postentry quarantine facilities that have 

been upgraded to ensure that pests 

cannot escape during the quarantine 

period. 

In general, postentry quarantine, as 

provided for in § 319.37–7, is an 

important tool in mitigating the risk 

associated with the importation of 

certain plants for planting. It is not clear 

whether the commenter is referring to 

additional plant types as in cuttings, 

whole plants, etc., or additional plant 

taxa. That said, postentry quarantine 

will be a mitigation that is available to 

us when we determine, as part of a 

comprehensive PRA, what mitigations 

may be necessary in order to allow the 

importation of taxa on the NAPPRA 

lists. We will consider the commenter’s 

suggestion to require postentry 

quarantine more broadly as we continue 

our ongoing revision of the plants for 

planting regulations. 

Risk-Mitigating Production Practices 

Several commenters suggested that we 

consider working with industry to 

develop and implement production 

practices that mitigate the overall risk 

associated with the importation of 

plants for planting. Many referred to 

such practices as ‘‘best management 

practices’’ (BMPs), consistent with our 

discussion in the December 2004 ANPR 

mentioned earlier in this document. 

Commenters cited mitigations 

including: 

• Using lower-risk plant materials 

such as seeds, cuttings, and tissue 

culture; 

• Pest detection, testing, and tracking 

mechanisms; 

• Growing plants in greenhouses or 

laboratory settings; 

• Certifying plants as clean before 

shipment; and 

• Micropropagation in vitro. 

Commenters cited differing means by 

which APHIS could use BMPs as a 

regulatory tool. Many stated that 

importation of taxa that are listed as 

NAPPRA or that are prohibited could be 

allowed to be imported if produced in 

accordance with certain BMPs. One 

stated that the regulations should 

embrace novel approaches such as 

industry codes of conduct, selfregulating programs operating under 

APHIS-established guidelines, and 

certification or accreditation of 

commercial operations or institutions 

that can demonstrate both capacity and 

commitment to compliance. Another 

recommended that we allow exceptions 

to the ban on the importation of 

vegetative material from taxa listed as 

hosts of quarantine pests if the nature of 

the pest(s) of concern meant that the 

pest could be mitigated by production 

practices—for example, by production 

in vitro. Similarly, a third commenter 

recommended that we conduct PRAs for 

low-risk types of plants for planting, 

such as seed, tissue culture, and 

cuttings, and apply less stringent import 

restrictions for them, to encourage the 

importation of these types of plants for 

planting. A fourth recommended that 

we proceed with the development of a 

regulatory systems approach as the 

second phase of the revision of the 

plants for planting regulations. 

We agree with these commenters. 

While adding such provisions to the 

regulations would be beyond the scope 

of the proposed rule, we are working to 

develop provisions for the use of 

various risk-mitigating measures in 

combination that would help facilitate 

the importation of taxa on the NAPPRA 

lists and of prohibited and other 

restricted taxa. We have been working 

with industry to develop risk-mitigating 

measures that, if followed, would 

ensure that plants for planting produced 

in accordance with them are free of 

quarantine pests. 

In order to determine that plants for 

planting that were produced in 

accordance with certain practices or 

certain types of plants for planting are 

low risk, we would need to conduct a 

risk evaluation. This would not 

necessarily be a full PRA; it may be a 

pest list and a risk management 

document, to determine that the riskmitigating measures are generally 

effective against the quarantine pests 

that could infest or infect the plants for 

planting. We would make the risk 

evaluation available to the public. 

Other Strategies 

One commenter recommended that 

the United States develop a National 

Weed Strategy Act, the key provisions of 

which would include: 

• An electronic system to determine 

the provenance of exotic species that are 

introduced into the United States and 

into the individual States; 

• A list of species whose importation 

into the United States is not allowed; 

• Protocols for purposeful 

importation and introduction of exotic 

species, including a quarantine 

insurance bond, paid by the importer, 

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which would cover the cost of control 

efforts in case any become necessary; 

• A national biosecurity fund, from 

the proceeds associated with quarantine 

insurance bonds, that would fund risk 

assessment, control and eradication, 

outreach, and other activities; 

• Protocols for accidental 

introductions, including a negligence 

scale to assess accidental introductions 

and liability standards for assessing 

appropriate fines; and 

• Model State-level biosecurity laws 

to allow for Federal-State cooperation. 

Another commenter also stated that 

the importer of plants for planting 

should become a property owner who 

must compensate and remove any 

introduction of an invasive plant 

species, pathogen, or insect. 

As recognized by the commenter, the 

recommendations with respect to a 

National Weed Strategy Act would 

require new legislation. The 

implementation of many of these 

recommendations would be highly 

disruptive to current commerce in 

plants for planting. Implementing the 

NAPPRA category is a crucial part of 

our broader effort to achieve a more 

appropriate level of protection against 

the risk posed by the importation of 

plants for planting within existing 

statutory authority. 

We do have a list of taxa whose 

importation is prohibited; we are 

establishing in this final rule a process 

to list taxa whose importation is not 

authorized pending pest risk analysis. 

Miscellaneous Changes 

The first sentence of paragraph (a) in 

§ 319.37 states that no person shall 

import or offer for entry into the United 

States any prohibited article, except as 

otherwise provided in § 319.37–2(c). To 

ensure that the regulations clearly 

indicate that NAPPRA taxa are not 

allowed to be imported, we are 

amending this sentence so that it also 

indicates that no person shall import or 

offer for entry into the United States any 

article whose importation is not 

authorized pending pest risk analysis, 

except as otherwise provided in 

§ 319.37–2(c). 

We proposed to change the definition 

of restricted article in § 319.37–1 to refer 

to plants for planting and to the 

NAPPRA category. That definition 

indicates that 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 are not 

restricted articles. However, citrus fruit, 

whose importation is regulated in 

§ 319.28, are also not restricted articles. 

Therefore, we are making an additional 

change to the definition of restricted 

articles by indicating that articles 

regulated in § 319.28 are also not 

restricted articles. 

We are also changing proposed 

paragraph (e)(2)(i)(C) of § 319.37–2a to 

clearly indicate that, if we publish a 

notice indicating that importation of a 

taxon on the NAPPRA list should be 

allowed subject to the general 

restrictions in the regulations, the PRA 

published along with the notice would 

have determined that the importation of 

the taxon does not pose a risk of 

introducing a quarantine pest into the 

United States. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

This final rule has been determined to 

be significant for the purposes of 

Executive Order 12866 and, therefore, 

has been reviewed by the Office of 

Management and Budget. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Orders 12866 

and 13563, which direct agencies to 

assess the costs and benefits of available 

regulatory alternatives and to select 

regulatory approaches that maximize 

benefits, reduce costs, harmonize rules 

across agencies, and promote flexibility. 

The economic analysis also analyzes the 

potential economic effects of this action 

on small entities, as required by the 

Regulatory Flexibility Act. 

The final rule will amend the 

importation of plants for planting 

regulations to establish a new category 

of regulated articles. This category will 

list taxa of plants for planting whose 

importation is not authorized pending 

pest risk analysis. This action is 

necessary to increase our safeguards 

against the risk of introduction of plant 

pests or pest plants (noxious weeds) that 

are associated with the importation of 

plants for planting and protect domestic 

agriculture and environmental 

resources. The final rule will establish 

the NAPPRA regulatory category and 

process. The rule will not establish any 

broad restrictions or prohibitions but 

will only target specific taxa; most taxa 

of plants for planting will continue to be 

allowed to be imported subject to the 

current general restrictions. The 

expected benefits of using the NAPPRA 

process to respond to risks far outweigh 

any expected costs of implementing the 

regulation. 

Under these circumstances, the 

Administrator of the Animal and Plant 

Health Inspection Service has 

determined that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Executive Order 12988 

This final rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This rule: (1) Preempts 

all State and local laws and regulations 

that are inconsistent with this rule; (2) 

has no retroactive effect; and (3) does 

not require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The review reveals that 

this rule will not have substantial and 

direct effects on Tribal governments and 

will not have significant Tribal 

implications. 

Paperwork Reduction Act 

The proposed rule did not propose to 

add any information collection or 

recordkeeping requirements. However, 

this final rule adds a requirement that 

requests to remove a taxon from the 

NAPPRA category be made in 

accordance with § 319.5. This section 

requires the submission of information 

that is necessary for us to conduct a 

PRA. We estimate that this information 

collection will require approximately 

5.6 hours per response. We made this 

change based on requests from 

commenters to allow only NPPOs to 

request that taxa be removed from the 

NAPPRA list; § 319.5 requires the 

submission of information available 

only from an NPPO. We also determined 

that we need all the information in 

§ 319.5 in order to successfully conduct 

a PRA for the importation of taxa of 

plants for planting, just as we need such 

information to conduct a PRA for the 

importation of fruits and vegetables. 

In accordance with section 3507(d) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), we published 

a notice in the Federal Register on May 

3, 2011 (76 FR 24848–24850, Docket No. 

APHIS–2006–0011), announcing our 

intention to initiate this information 

collection and soliciting comments on 

it. We are asking the Office of 

Management and Budget (OMB) to 

approve our use of this information 

collection for 3 years. When OMB 

notifies us of its decision, we will 

publish a document in the Federal 

Register providing notice of the 

assigned OMB control number or, if 

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31208 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

1The Plant Protection and Quarantine Programs 

also enforces regulations promulgated under the 

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

as amended) which contain additional prohibitions 

and restrictions on importation into the United 

States of articles subject to this subpart (See 50 CFR 

parts 17 and 23). 

2One or more common names of articles are 

given in parentheses after most scientific names 

(when common names are known) for the purpose 

of helping to identify the articles represented by 

such scientific names; however, unless otherwise 

specified, a reference to a scientific name includes 

all articles within the category represented by the 

scientific name regardless of whether the common 

name or names are as comprehensive in scope as 

the scientific name. 

approval is denied, providing notice of 

what action we plan to take. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

Accordingly, we are amending 7 CFR 

part 319 as follows: 

PART 319—FOREIGN QUARANTINE 

NOTICES 

■ 1. The authority citation for part 319 

continues to read as follows: 

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

7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 

2.22, 2.80, and 371.3. 

Subpart—Plants for Planting 1 2

■ 2. The heading of the subpart 

consisting of §§ 319.37 through 319.37– 

14 is revised to read as set forth above. 

§ 319.37 [Amended] 

■ 3. Section 319.37 is amended as 

follows: 

■ a. In paragraph (a), in the first 

sentence, by adding the words ‘‘or any 

article whose importation is not 

authorized pending pest risk analysis in 

accordance with § 319.37–2a’’ after the 

word ‘‘article’’. 

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

words ‘‘plant pests’’ and adding the 

words ‘‘quarantine pests’’ in their place; 

and by removing the words ‘‘plant pest’’ 

and adding the words ‘‘quarantine pest’’ 

in their place. 

■ 4. Section 319.37–1 is amended as 

follows: 

■ a. By adding, in alphabetical order, 

new definitions of noxious weed, 

official control, planting, plants for 

planting, quarantine pest, and taxon 

(taxa). 

■ b. By removing the definition of 

nursery stock. 

■ c. In the definition of clean well water, 

by removing the words ‘‘plant 

pathogens or other plant pests’’ and 

adding the words ‘‘quarantine pests’’ in 

their place. 

■ d. In the definition of phytosanitary 

certificate of inspection, by removing 

the words ‘‘injurious plant diseases, 

injurious insect pests, and other plant 

pests’’ and adding the words 

‘‘quarantine pests’’ in their place. 

■ e. In the definition of prohibited 

article, by removing the words ‘‘nursery 

stock, plant, root, bulb, seed, or other 

plant product’’ and adding the words 

‘‘plant for planting’’ in their place. 

■ f. By revising the definitions of 

regulated plant and restricted article to 

read as set forth below. 

§ 319.37–1 Definitions. 

* * * * * 

Noxious weed. Any plant or plant 

product that can directly or indirectly 

injure or cause damage to crops 

(including plants for planting or plant 

products), livestock, poultry, or other 

interests of agriculture, irrigation, 

navigation, the natural resources of the 

United States, the public health, or the 

environment. 

* * * * * 

Official control. The active 

enforcement of mandatory 

phytosanitary regulations and the 

application of mandatory phytosanitary 

procedures with the objective of 

eradication or containment of 

quarantine pests. 

* * * * * 

Planting. Any operation for the 

placing of plants in a growing medium, 

or by grafting or similar operations, to 

ensure their subsequent growth, 

reproduction, or propagation. 

Plants for planting. Plants intended to 

remain planted, to be planted or 

replanted. 

* * * * * 

Quarantine pest. A plant pest or 

noxious weed that is of potential 

economic importance to the United 

States and not yet present in the United 

States, or present but not widely 

distributed and being officially 

controlled. 

Regulated plant. A vascular or 

nonvascular plant. Vascular plants 

include gymnosperms, angiosperms, 

ferns, and fern allies. Gymnosperms 

include cycads, conifers, and gingko. 

Angiosperms include any flowering 

plant. Fern allies include club mosses, 

horsetails, whisk ferns, spike mosses, 

and quillworts. Nonvascular plants 

include mosses, liverworts, hornworts, 

and green algae. 

Restricted article. Any plant for 

planting, excluding any prohibited 

articles listed in § 319.37–2(a) or (b) of 

this subpart, any articles whose 

importation is not authorized pending 

pest risk analysis under § 319.37–2a of 

this subpart, and excluding any articles 

regulated in §§ 319.8 through 319.28 or 

319.41 through 319.74–4 of this part and 

any articles regulated in part 360 of this 

chapter. 

* * * * * 

Taxon (taxa). Any grouping within 

botanical nomenclature, such as family, 

genus, species, or cultivar. 

* * * * * 

§ 319.37–2 [Amended] 

■ 5. Section 319.37–2 is amended as 

follows: 

■ a. In paragraph (a), in the third 

column of the heading of the table, by 

removing the words ‘‘Plant pests’’ and 

adding the words ‘‘Quarantine pests’’ in 

their place. 

■ b. In paragraph (c) introductory text, 

by adding the words ‘‘, and any article 

listed in accordance with § 319.37–2a of 

this subpart as an article whose 

importation is not authorized pending 

pest risk analysis,’’ after the word 

‘‘section’’. 

■ 6. A new § 319.37–2a is added to read 

as follows: 

§ 319.37–2a Taxa of regulated plants for 

planting whose importation is not 

authorized pending pest risk analysis. 

(a) Determination by the 

Administrator. The importation of 

certain taxa of plants for planting poses 

a risk of introducing quarantine pests 

into the United States. Therefore, the 

importation of these taxa is not 

authorized pending the completion of a 

pest risk analysis, except as provided in 

§ 319.37–2(c). Lists of these taxa may be 

found on the Internet at http:// 

www.aphis.usda.gov/import_export/ 

plants/plant_imports/ 

Q37_nappra.shtml. There are two lists 

of taxa whose importation is not 

authorized pending pest risk analysis: A 

list of taxa of plants for planting that are 

quarantine pests, and a list of taxa of 

plants for planting that are hosts of 

quarantine pests. For taxa of plants for 

planting that have been determined to 

be quarantine pests, the list includes the 

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Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 31209 

names of the taxa. For taxa of plants for 

planting that are hosts of quarantine 

pests, the list includes the names of the 

taxa, the foreign places from which the 

taxa’s importation is not authorized, and 

the quarantine pests of concern. 

(b) Addition of taxa. A taxon of plants 

for planting may be added to one of the 

lists of taxa not authorized for 

importation pending pest risk analysis 

under this section as follows: 

(1) Data sheet. APHIS will publish in 

the Federal Register a notice that 

announces our determination that a 

taxon of plants for planting is either a 

quarantine pest or a host of a quarantine 

pest. This notice will make available a 

data sheet that details the scientific 

evidence APHIS evaluated in making 

the determination that the taxon is a 

quarantine pest or a host of a quarantine 

pest. The data sheet will include 

references to the scientific evidence that 

APHIS used in making the 

determination. In our notice, we will 

provide for a public comment period of 

a minimum of 60 days on our addition 

to the list. 

(2) Response to comments. (i) APHIS 

will issue a notice after the close of the 

public comment period indicating that 

the taxon will be added to the list of 

taxa not authorized for importation 

pending pest risk analysis if: 

(A) No comments were received on 

the data sheet; 

(B) The comments on the data sheet 

revealed that no changes to the data 

sheet were necessary; or 

(C) Changes to the data sheet were 

made in response to public comments, 

but the changes did not affect APHIS’ 

determination that the taxon poses a 

risk of introducing a quarantine pest 

into the United States. 

(ii) If comments present information 

that leads us to determine that the taxon 

does not pose a risk of introducing a 

quarantine pest into the United States, 

APHIS will not add the taxon to the list 

of plants for planting whose importation 

is not authorized pending pest risk 

analysis. APHIS will issue a notice 

giving public notice of this 

determination after the close of the 

comment period. 

(c) Criterion for listing a taxon of 

plants for planting as a quarantine pest. 

A taxon will be added to the list of taxa 

whose importation is not authorized 

pending pest risk analysis if scientific 

evidence causes APHIS to determine 

that the taxon is a quarantine pest. 

(d) Criteria for listing a taxon of 

plants for planting as a host of a 

quarantine pest. A taxon will be added 

to the list of taxa whose importation is 

not authorized pending pest risk 

analysis if scientific evidence causes 

APHIS to determine that the taxon is a 

host of a quarantine pest. The following 

criteria must be fulfilled in order to 

make this determination: 

(1) The plant pest in question must be 

determined to be a quarantine pest; and 

(2) The taxon of plants for planting 

must be determined to be a host of that 

quarantine pest. 

(e) Removing a taxon from the list of 

taxa not authorized pending pest risk 

analysis. (1) Requests to remove a taxon 

from the list of taxa not authorized 

pending pest risk analysis must be made 

in accordance with § 319.5 of this part. 

APHIS will conduct a pest risk analysis 

in response to such a request. The pest 

risk analysis will examine the risk 

associated with the importation of that 

taxon. 

(2) If the pest risk analysis supports a 

determination that importation of the 

taxon be prohibited or allowed subject 

to special restrictions, such as a systems 

approach, treatment, or postentry 

quarantine, APHIS will publish a 

proposed rule making the pest risk 

analysis available to the public and 

proposing to take the action 

recommended by the pest risk analysis. 

(3) If the pest risk analysis supports a 

determination that importation of the 

taxon be allowed subject to the general 

restrictions of this subpart, APHIS will 

publish a notice announcing our intent 

to remove the taxon from the list of taxa 

whose importation is not authorized 

pending pest risk analysis and making 

the pest risk analysis supporting the 

taxon’s removal available for public 

review. 

(i) APHIS will issue a notice after the 

close of the public comment period 

indicating that the importation of the 

taxon will be subject only to the general 

restrictions of this subpart if: 

(A) No comments were received on 

the pest risk analysis; 

(B) The comments on the pest risk 

analysis revealed that no changes to the 

pest risk analysis were necessary; or 

(C) Changes to the pest risk analysis 

were made in response to public 

comments, but the changes did not 

affect the overall conclusions of the 

analysis and the Administrator’s 

determination that the importation of 

the taxon does not pose a risk of 

introducing a quarantine pest into the 

United States. 

(ii) If information presented by 

commenters indicates that the pest risk 

analysis needs to be revised, APHIS will 

issue a notice after the close of the 

public comment period indicating that 

the importation of the taxon will 

continue to be listed as not authorized 

pending pest risk analysis while the 

information presented by commenters is 

analyzed and incorporated into the pest 

risk analysis. APHIS will subsequently 

publish a new notice announcing the 

availability of the revised pest risk 

analysis. 

(4) APHIS may also remove a taxon 

from the list of taxa whose importation 

is not authorized pending pest risk 

analysis when APHIS determines that 

the evidence used to add the taxon to 

the list was erroneous (for example, 

involving a taxonomic 

misidentification). 

§ 319.37–4 [Amended] 

■ 7. In § 319.37–4, paragraph (d)(2) is 

amended by adding the words ‘‘; is not 

listed as not authorized pending pest 

risk analysis, as provided in § 319.37– 

2a’’ after the citation ‘‘§ 319.37–2’’. 

§ 319.37–5 [Amended] 

■ 8. In § 319.37–5, paragraph (i) 

introductory text is amended by 

removing the words ‘‘plant diseases’’ 

and adding the words ‘‘quarantine 

pests’’ in their place. 

§ 319.37–7 [Amended] 

■ 9. Section 319.37–7 is amended as 

follows: 

■ a. In paragraph (c)(2)(iii), by removing 

the words ‘‘exotic pests’’ and adding the 

words ‘‘quarantine pests’’ in their place. 

■ b. In paragraph (c)(2)(iv), by removing 

the words ‘‘plant pests that are not 

known to exist in the United States 

and’’ and adding the words ‘‘quarantine 

pests’’ in their place. 

■ c. In paragraph (d)(5), by removing the 

words ‘‘an injurious plant disease, 

injurious insect pest, or other plant 

pest’’ and adding the words ‘‘a 

quarantine pest’’ in their place. 

■ d. In paragraphs (f)(1) and (f)(2), by 

removing the words ‘‘plant pests’’ each 

time they occur and adding the words 

‘‘quarantine pests’’ in their place. 

■ e. In paragraphs (f)(1) and (f)(2), by 

removing the words ‘‘plant pest(s)’’ each 

time they occur and adding the words 

‘‘quarantine pest(s)’’ in their place. 

§ 319.37–8 [Amended] 

■ 10. Section 319.37–8 is amended as 

follows: 

■ a. In paragraph (e)(2) introductory 

text, by removing the words ‘‘disease 

and pests’’ and adding the words 

‘‘quarantine pests’’ in their place. 

■ b. In paragraph (e)(2)(ii), by removing 

the words ‘‘plant pests and diseases’’ 

and adding the words ‘‘quarantine 

pests’’ in their place; and by removing 

the words ‘‘injurious plant diseases, 

injurious insect pests, and other plant 

pests’’ and adding the words 

‘‘quarantine pests’’ in their place. 

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31210 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Rules and Regulations 

■ c. In paragraph (e)(2)(iv)(B), by adding 

the word ‘‘quarantine’’ before the word 

‘‘pests’’. 

■ d. In paragraph (e)(2)(vii),’’ by 

removing the words ‘‘plant pests’’ and 

adding the words ‘‘quarantine pests’’ in 

their place. 

■ e. In paragraph (e)(2)(viii), by 

removing the words ‘‘plant pests and 

diseases’’ and adding the words 

‘‘quarantine pests’’ in their place. 

■ f. In paragraph (e)(2)(xi)(B), by 

removing the words ‘‘plant pests’’ and 

adding the words ‘‘quarantine pests’’ in 

their place. 

■ g. In paragraphs (f)(3)(i), (f)(3)(vii), 

(f)(3)(viii), and (f)(4), by removing the 

words ‘‘injurious plant diseases, 

injurious insect pests, and other plant 

pests’’ each time they occur and adding 

the words ‘‘quarantine pests’’ in their 

place. 

■ 11. Section 319.37–12 is revised to 

read as follows: 

§ 319.37–12 Prohibited articles and articles 

whose importation is not authorized 

pending pest risk analysis accompanying 

restricted articles. 

A restricted article for importation 

into the United States may not be 

packed in the same container as an 

article whose importation into the 

United States is prohibited by this 

subpart or in the same container as an 

article whose importation is not 

authorized pending pest risk analysis 

under § 319.37–2a of this subpart. 

§ 319.37–13 [Amended] 

■ 12. Section 319.37–13 is amended as 

follows: 

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

words ‘‘injurious plant disease, 

injurious insect pest, or other plant pest, 

new to or not theretofore known to be 

widely prevalent or distributed within 

and throughout the United States’’ and 

adding the words ‘‘quarantine pests’’ in 

their place; and by removing the words 

‘‘injurious plant diseases, injurious 

insect pests, or other plant pests’’ and 

adding the words ‘‘quarantine pests’’ in 

their place. 

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

words ‘‘pests and Federal noxious 

weeds’’ and adding the words 

‘‘quarantine pests’’ in their place. 

Done in Washington, DC, this 18th day of 

May 2011. 

Ann Wright, 

Deputy Under Secretary for Marketing and 

Regulatory Programs. 

[FR Doc. 2011–13054 Filed 5–26–11; 8:45 am] 

BILLING CODE 3410–34–P 

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