[Federal Register Volume 74, Number 140 (Thursday, July 23, 2009)]
[Proposed Rules]
[Pages 36403-36414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17535]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 74, No. 140 / Thursday, July 23, 2009 / 
Proposed Rules

[[Page 36403]]



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: Proposed rule.

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SUMMARY: We are proposing 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 would list taxa of 
plants for planting whose importation is not authorized pending pest 
risk analysis. If scientific evidence indicated that the taxon of 
plants for planting is a potential quarantine pest or a potential host 
of a quarantine pest, we would publish a notice that would announce our 
determination that the taxon is a potential quarantine pest or a 
potential 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 received no comments 
that changed our determination, the taxon would subsequently be added 
to the new category. We would allow any person to petition for a pest 
risk analysis to be conducted for a taxon that has been added to the 
new category. After the pest risk analysis was completed, we would 
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 would 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 would allow us to take prompt action on evidence that 
the importation of a taxon of plants for planting may pose a risk while 
continuing to allow for public participation in the process.

DATES: We will consider all comments that we receive on or before 
October 21, 2009.

ADDRESSES: You may submit comments by either of the following methods:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0011 to submit or view comments and 
to view supporting and related materials available electronically.
    <bullet> Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2006-0011, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2006-0011.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Arnold Tschanz, Senior Plant 
Pathologist, Risk Management and Plants for Planting Policy, RPM, PPQ, 
APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-
0627.

SUPPLEMENTARY INFORMATION:

Background

    Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the 
Secretary of Agriculture is authorized to take such actions as may be 
necessary to prevent the introduction and spread of plant pests and 
noxious weeds within the United States. The Secretary has delegated 
this responsibility to the Administrator of the Animal and Plant Health 
Inspection Service (APHIS).
    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of 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.\1\ The regulations in ``Subpart--Nursery Stock, Plants, 
Roots, Bulbs, Seeds, and Other Plant Products,'' Sec. Sec.  319.37 
through 319.37-14 (referred to below as the regulations, and often 
referred to colloquially as the ``Quarantine 37'' regulations), 
restrict, among other things, the importation of living plants, plant 
parts, seeds, and plant cuttings for planting or propagation. The 
regulations in 7 CFR part 360, ``Noxious Weed Regulations,'' contain 
restrictions on the movement of noxious weeds or plant products listed 
in that part into or through the United States and interstate; the 
importation of some plants is subject to both the nursery stock 
regulations and the noxious weed regulations.
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    \1\ The term ``official control'' is further defined later in 
this proposal.
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    To refer to the articles subject to the nursery stock regulations 
collectively in this document, we will use the term ``plants for 
planting,'' which the International Plant Protection Convention (IPPC) 
defines as: ``Plants intended to remain planted, to be planted or 
replanted.'' Planting is defined by the IPPC as: ``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.''\2\ In a final rule published in the Federal Register on 
August 6, 2007, and effective September 5, 2007 (72 FR 43503-43524, 
Docket No. 03-002-3), we added a definition of plant to the regulations 
that is drawn from the Plant Protection Act and includes any plant 
(including any plant part) for or capable

[[Page 36404]]

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. We consider the term ``plants for planting'' to 
include all the articles subject to the nursery stock regulations, and 
thus to be equivalent to the term ``nursery stock'' as it is used in 
the current regulations.
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    \2\ See the Glossary of Phytosanitary Terms (2007), which is 
International Standard for Phytosanitary Measures (ISPM) Number 5. 
To view this and other ISPMs on the Internet, go to http://www.ippc.int/IPP/En/default.jsp and click on the ``Adopted ISPMs'' 
link under the ``Standards (ISPMs)'' heading.
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    Plants for planting that cannot be feasibly inspected, treated, or 
handled to prevent quarantine pests that may accompany them from being 
introduced into the United States are listed in Sec.  319.37-2(a) or 
(b) of the regulations as prohibited articles. Prohibited articles may 
not be imported into the United States, unless imported by the U.S. 
Department of Agriculture (USDA) for experimental or scientific 
purposes under safeguards specified in the permit issued for the 
importation of the articles.
    Plants for planting that can be inspected, treated, or handled to 
mitigate the risk of introduction of quarantine pests associated with 
the importation of the plants into the United States are referred to in 
the regulations as restricted articles. Restricted articles may be 
imported into the United States if they are imported in compliance with 
conditions that may include permit and phytosanitary certificate 
requirements, inspection, treatment, postentry quarantine, or 
combinations of these safeguards. Except for certain bulbs from the 
Netherlands, Canadian greenhouse-grown plants, small lots of seed, and 
certain seeds from Canada (as described in Sec.  319.37-4(a)(4), (c), 
(d), and (e), respectively), the regulations require that a 
phytosanitary certificate issued by the exporting country's national 
plant protection organization (NPPO) accompany all restricted articles 
imported into the United States.
    All plants for planting imported into the United States must be 
presented for inspection. Plants for planting that are required to be 
imported under a written permit under Sec.  319.37-3(a)(1) through 
(a)(6) and that are not from Canada must be imported or offered for 
importation at a USDA plant inspection station. Such stations are 
listed in Sec.  319.37-14. Plants for planting that are offered for 
inspection at a USDA plant inspection station are inspected by Plant 
Protection and Quarantine (PPQ) inspectors. Plants for planting that 
are not required to be inspected at a USDA plant inspection station may 
be presented for inspection either at one of the ports listed in Sec.  
319.37-14 or at a Customs designated port of entry indicated in 19 CFR 
101.3(b)(1). Such plants are inspected by the Department of Homeland 
Security's Bureau of Customs and Border Protection.
    After inspection, the plants may be allowed entry into the United 
States (with treatment, if necessary), destroyed, or reexported, 
depending on the results of the inspection. Because lots of 13 or more 
articles (other than seeds, bulbs, or sterile cultures of orchid 
plants) from any country or locality except Canada are required to be 
imported under a permit, most shipments of plants for planting are 
inspected at USDA plant inspection stations.

Summary of New Category of Plants for Planting

    Currently, the regulations categorize imported plants for planting 
as either prohibited articles or restricted articles. We are proposing 
to create a new category of plants for planting whose importation is 
not authorized pending the completion of a pest risk analysis. We will 
refer to the category in this document as the ``not authorized pending 
pest risk analysis'' (NAPPRA) category. 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\
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    \3\ We use the term ``taxon'' (plural: taxa) in this document to 
refer to any grouping within botanical nomenclature, such as family, 
genus, species, or cultivar. We are proposing to add this term to 
the regulations as well; see the section headed ``Definitions'' 
later in this document.
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    We typically provide notice of our intent to designate plants for 
planting as prohibited articles, or place additional restrictions on 
their importation, through proposed rules, and we often complete a pest 
risk analysis (PRA) to support such a designation. By contrast, taxa of 
plants for planting would be added to the NAPPRA category based on 
scientific evidence that indicates that they pose a risk of introducing 
a quarantine pest into the United States, rather than on a 
comprehensive PRA. Additionally, we would establish the NAPPRA lists on 
a PPQ 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. Thus, the NAPPRA category 
would allow us to take more timely action when evidence indicates that 
the importation of a taxon of plants for planting may pose a risk of 
introducing a quarantine pest into the United States.
    Any person would be able to request that APHIS conduct a PRA on any 
plant taxon listed in the NAPPRA category. 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.

The December 2004 Advance Notice of Proposed Rulemaking and the Current 
State of the Nursery Stock Regulations

    We first notified the public that we were considering establishing 
a new category of imported plants for planting in an advance notice of 
proposed rulemaking (ANPR) that we published in the Federal Register on 
December 10, 2004 (69 FR 71736-71744, Docket No. 03-069-1).\4\ This 
ANPR presented several possible changes that we were considering to 
revise the plants for planting regulations, one of which was 
implementing the NAPPRA category. (In the December 2004 ANPR, the 
NAPPRA category described above was called ``Option 2'' for 
establishing a category of plants excluded from importation pending 
risk evaluation and approval; we have changed the terminology we are 
using in this proposal in an effort to improve clarity. Option 1 in the 
December 2004 ANPR was to exclude from importation into the United 
States all taxa that were not currently being imported in significant 
amounts; we are not proposing to implement Option 1 or requesting 
comment on it in this document.)
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    \4\ The 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 history of the nursery 
stock regulations that is helpful for understanding their original 
intent and current state.
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    As we discussed in the December 2004 ANPR, the only pest risk 
mitigation measures required for the importation of most taxa of plants 
for planting are that they be accompanied by a phytosanitary 
certificate and that they enter the United States through a USDA plant 
inspection station, at which the plants for planting are sampled and 
visually inspected. The Plant Protection Act provides APHIS with the 
authority to require individual shipments of plants for planting to be 
treated, destroyed, or reexported if inspectors find quarantine pests 
in the shipments. However, this inspection may not always provide an 
adequate level of

[[Page 36405]]

protection against quarantine pests, particularly if a pest is rare, 
small in size, borne within the plant, or an asymptomatic plant 
pathogen.
    We take action to generally prohibit or restrict the importation of 
an entire taxon of plants for planting beyond the general permit, 
phytosanitary certificate, and inspection requirements only if there is 
specific evidence that importation of that taxon could introduce a 
quarantine pest into the United States. If we have reason to believe 
that a currently admissible taxon of plants for planting may be a 
quarantine pest itself or may be a host of a quarantine pest, we 
typically complete a comprehensive PRA to examine the available 
evidence on the subject. The PRA considers all the scientific resources 
available to the agency and makes determinations on the following 
issues:
    <bullet> Whether importation of the taxon poses a risk;
    <bullet> If importation of the taxon poses a risk, what level of 
risk it poses;
    <bullet> If the importation poses a risk that warrants mitigation, 
whether that risk can be mitigated; and
    <bullet> If the risk can be mitigated, what risk management 
strategies can accomplish the mitigation.
    Many scientific resources exist that provide evidence regarding the 
potential of taxa of plants for planting to be quarantine pests 
themselves or to serve as hosts for quarantine pests. PPQ regularly 
reviews these resources to keep up to date with emerging pest risks. 
Information gathered from these scientific resources can serve as a 
trigger to begin the PRA process. In situations that we judge to pose 
an emergency, we can take action immediately to stop the importation of 
a taxon into the United States. In other situations, we strive to 
complete a PRA promptly, so that we can address any pest risks 
discovered in the PRA through regulatory action.
    However, as both the volume and number of plants for planting that 
are imported has increased dramatically over the last decade, it has 
been a challenge for us to follow up on the available scientific 
evidence by initiating PRAs, and, when necessary, amending the 
regulations to address risks presented by the importation of plants for 
planting. We estimate that species of plants for planting from more 
than 2,000 genera are being imported or have been imported in the past; 
most taxa of plants for planting that are imported into the United 
States for the first time enter without a PRA having been conducted 
prior to their importation. In the meantime, taxa of plants for 
planting that scientific evidence indicates are potential quarantine 
pests or potential hosts of a quarantine pest may continue to be 
imported with no restrictions other than the requirements for a 
phytosanitary certificate, a port-of-entry phytosanitary inspection, 
and, for certain articles, a written permit. During the time a PRA is 
being completed to evaluate the potential pest risk associated with a 
taxon, U.S. agricultural and environmental resources may be at risk due 
to the importation of the taxon.
    Appropriately mitigating the risks of quarantine pest introduction 
associated with the importation of plants for planting is especially 
important because quarantine pests introduced via imported plants for 
planting are generally much more likely to become established than 
quarantine pests introduced via other imported articles that are not 
intended for planting or propagation. Imported plants for planting 
themselves may serve as hosts for quarantine pests for months or years. 
In addition, the destinations of imported plants for planting, such as 
plant nurseries, farms, greenhouses, orchards, and gardens, are likely 
to be favorable environments for plant growth and pest development in 
general, which could present problems in the event that a taxon of 
imported plants for planting turns out to be a carrier of a quarantine 
pest or is itself a quarantine pest plant. Under these circumstances, 
the introduction of even a few individuals of a quarantine pest species 
via imported plants for planting may lead to the establishment of that 
pest in the United States.
    The National Plant Board's 1999 ``Safeguarding American Plant 
Resources'' report \5\ contrasted the approach of the regulations 
governing the importation of plants for planting with the approach of 
the regulations governing the importation of fruits and vegetables, 
which are found in ``Subpart--Fruits and Vegetables'' (Sec. Sec.  
319.56-1 through 319.56-49) within 7 CFR part 319.
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    \5\ The Safeguarding Report can be viewed on the Internet at 
http://www.safeguarding.org.
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    Although quarantine pests that enter the United States via imported 
plants for planting are more likely to become established than 
quarantine pests that enter the United States via imported fruits and 
vegetables, the nursery stock regulations do not require a PRA to be 
completed prior to the importation of a new taxon of plants for 
planting or prior to the taxon's importation from a new area.
    By contrast, the importation of fruits and vegetables is generally 
prohibited under the regulations in ``Subpart--Fruits and Vegetables,'' 
and the completion of a PRA is generally required before a commodity 
can enter from a new area. The process of allowing the importation of a 
fruit or vegetable from a particular area or country begins when APHIS 
receives an import request from an exporting country or when there is a 
request to reconsider the entry status of a commodity previously denied 
entry. The request must be accompanied by information about the 
commodity proposed for importation into the United States, shipping 
information, a description of pests and diseases associated with the 
commodity, and current strategies for risk mitigation or management, as 
described in Sec.  319.5.
    If the request is for a fruit or vegetable for which no previous 
entry decision has been made, or if new evidence indicates that the 
previous entry decision may no longer be applicable, then a PRA is 
completed to determine the sources of pest risk associated with the 
requested importation. The fruit or vegetable is only allowed to be 
imported if the PRA indicates that the risk can be effectively 
mitigated and if we receive no public comments on the analysis that 
lead us to change the conclusions of the PRA. In other words, the 
importation of all commodities whose importation is governed by 
``Subpart--Fruits and Vegetables'' is not authorized pending pest risk 
analysis and approval.
    This difference between the regulatory approaches for plants for 
planting and for fruits and vegetables means that APHIS typically has 
less information about the risks associated with the importation of 
particular taxa of plants for planting than we have about the risks 
associated with the importation of taxa of fruits and vegetables. While 
our records of importation indicate that some taxa of plants for 
planting have been safely imported for years, the data on other taxa is 
less conclusive and sometimes indicates that importation of the taxa 
may pose a pest risk. Given the relative lack of information available 
about the risks posed by the importation of plants for planting, it can 
be assumed that some taxa of plants for planting that are presently 
being imported pose risks of introducing quarantine pests that have not 
been assessed through the PRA process.
    The North American Plant Protection Organization (NAPPO), a 
regional plant protection organization recognized by the IPPC, 
coordinates efforts among the NPPOs of Canada, the United States, and 
Mexico to protect their plant resources from the entry, establishment

[[Page 36406]]

and spread of regulated plant pests, while facilitating intra- and 
interregional trade. In its Regional Standard for Phytosanitary 
Measures No. 24, NAPPO examined the regulatory issues associated with 
international trade in plants for planting. The standard ultimately 
concluded that ``current regulatory measures are insufficient to ensure 
adequate protection for NAPPO countries in today's trading 
environment.'' \6\ The standard called for regulatory officials, the 
horticulture industry, and the environmental community from Canada, the 
United States, and Mexico to adopt more effective regulations to 
mitigate the risk of pest introductions on plants for planting.
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    \6\ The standard (``Integrated Pest Risk Management Measures for 
the Importation of Plants for Planting into NAPPO Member 
Countries'') can be viewed on the Internet at http://www.nappo.org/Standards/NEW/RSPMNo.24-e.pdf.
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Establishing the NAPPRA Category To Provide an Appropriate Level of 
Phytosanitary Protection

    We are 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.
    Based on the increased diversity and volume of plants currently 
being imported, we have determined 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. For 
this proposal, APHIS has prepared a 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,'' which 
analyzes current trends in the importation of plants for planting and 
the general risks associated with plants for planting.\7\ It concludes, 
``The risk associated with imported plants is considered, by APHIS, to 
be higher than other pathways, e.g., imported fruits and vegetables. 
Because they are normally placed in conditions that encourage growth, 
plants serve as long-term hosts to the pests that they carry and 
therefore increase the probability that these pests will establish, and 
spread. In addition, the importation of plants that develop invasive or 
other harmful characteristics is particularly dangerous because the 
original intent of importation was to introduce and spread the plant. * 
* * Evidence indicates that while the original assumptions and designs 
for Quarantine 37 and the noxious weed regulations may have been valid 
when the challenges to the system were less intense, the contemporary 
situation is orders of magnitude more challenging.''
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    \7\ The foundation document is available on the Regulations.gov 
Web site and in our reading room (see ADDRESSES above) and may be 
obtained from the person listed under FOR FURTHER INFORMATION 
CONTACT.
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    The foundation document identifies the following factors supporting 
our determination that the current regulatory approach to the 
importation of plants for planting needs to be enhanced to adequately 
address this risk:
    <bullet> The volume of imported seed has increased 2,000 percent in 
the last decade;
    <bullet> 1,000 more genera were imported through the Miami plant 
inspection station (the primary plant inspection station for such 
importation) in 2006 than in 2004;
    <bullet> The number of shipments through the Miami plant inspection 
station nearly doubled (from 29,251 to 52,540) in the same period;
    <bullet> Plants are imported from all regions of the world, 
including areas where available pest information is limited;
    <bullet> The number of pests that escape detection in the 
inspection process increases with the volume of plant importation;
    <bullet> Inspection is approaching, or may have reached, the limits 
of its operational efficacy due to the increased volume and diversity 
of importations; and
    <bullet> Hundreds of pest plants have been introduced into the 
United States as imports.
    We have therefore determined that the foundation document indicates 
a need to revise the regulations to provide a more appropriate level of 
protection against the risks associated with the importation of plants 
for planting. The NAPPRA category described in this proposal is the 
first step we are proposing to take to accomplish this goal.

Comments Received on This Subject in Response to the December 2004 ANPR 
and the May 2005 Public Meeting

    We solicited comments concerning the December 2004 ANPR for 90 
days, ending March 10, 2005. In a notice published in the Federal 
Register on March 10, 2005 (70 FR 11886, Docket No. 03-069-2), we 
extended the comment period for the ANPR for an additional 30 days 
ending April 11, 2005, to allow interested persons additional time to 
prepare and submit comments.
    In a document published in the Federal Register on May 2, 2005 (70 
FR 22612-22613, Docket No. 03-069-3), we announced the availability of 
a draft set of criteria that could be used to determine which taxa 
might be included in the NAPPRA category, should we decide to establish 
such a category. In order to provide a forum for discussing those draft 
criteria and associated issues, such as how such a category might be 
defined and implemented were it to be adopted, we held a public meeting 
on May 25, 2005, in Riverdale, MD. As part of that document, we also 
reopened the comment period for our December 2004 ANPR until June 3, 
2005.
    We received a total of 275 comments on the ANPR. (Not all of these 
comments addressed the NAPPRA category.) In addition, we recorded 
extensive notes of the discussions at the public meeting of May 25, 
2005. We have carefully considered the comments we received on the ANPR 
and the views expressed at the public meeting in developing this 
proposal.
    Some commenters, particularly Federal, State, and local government 
agencies, environmental advocacy groups, and industry groups, supported 
adding the category so that APHIS could promptly prevent the 
importation of taxa of plants for planting that posed a potential risk 
of introducing a quarantine pest. Some of these commenters also favored 
changing the approach of the plants for planting regulations by adding 
all plants for planting to the NAPPRA category, unless a PRA showed 
that the risk associated with the importation of a specific taxon could 
be appropriately mitigated, similar to the fruits and vegetables 
regulations. A few commenters proposed alternatives to the regulatory 
approach we had outlined in the ANPR.
    A larger group of commenters, mostly private citizens and small 
businesses, opposed establishing the NAPPRA category. They believed 
that a comprehensive PRA specifically examining the risks associated 
with the importation of a taxon of plants for planting is the only 
evidence that should be used to restrict or prohibit the importation of 
that taxon.
    While a comprehensive PRA is necessary to determine all the 
quarantine pests that may be associated with a taxon and, if 
appropriate, offer means to mitigate the risk associated with these 
pests, the scientific evidence we would use to add a taxon to the 
NAPPRA category would be sufficient to establish that the taxon is a 
quarantine pest or is a host of a quarantine pest. This proposal would 
provide the public with the ability to request that a PRA be

[[Page 36407]]

conducted for any taxon that we add to the NAPPRA category.
    Some commenters from this group stated that any further 
restrictions on the importation of plants for planting would adversely 
impact the overall biodiversity of plants in the United States.
    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 
helps to ensure that the current biodiversity of the United States is 
not adversely affected.
    Some of these commenters were concerned that small businesses would 
be unfairly harmed by the imposition of additional restrictions on the 
importation of plants for planting, as such businesses often depend on 
novel plants to sell to consumers.
    Although we acknowledge that restricting the importation of risky 
plant taxa may have impacts on small businesses, we have determined 
that the NAPPRA category is necessary to allow APHIS to appropriately 
respond to risks associated with the importation of plants for planting 
and to provide an appropriate level of protection against such risks. 
We would decide to restrict the importation of taxa of plants for 
planting on the basis of scientific evidence indicating that the 
importation of the taxa poses a risk. Though some taxa of plants for 
planting would be listed on the NAPPRA lists, most other taxa of plants 
for planting could continue to be imported subject to general 
restrictions.
    Others who were opposed to the NAPPRA category questioned whether 
the decision to add a taxon to the new category would be sufficiently 
grounded in sound science, often stating that plants should be 
considered not to pose a risk unless specific evidence exists 
indicating that they do. Commenters also questioned whether the process 
for adding a taxon would be transparent and allow for adequate public 
participation.
    We took these comments into account as we developed the NAPPRA 
process, which is detailed in the remainder of this document, Under 
this proposed rule, taxa would only be added to the NAPPRA category 
based on scientific evidence, and we would publish notices indicating 
our intent to add taxa to the NAPPRA category that would describe the 
scientific evidence and giving the public the opportunity to comment on 
our decisions. For these reasons, we are confident that the proposed 
NAPPRA category and process would fulfill our commitments to base our 
decisions on sound science, to employ transparent processes in reaching 
and communicating our decisions, and to allow for public participation 
in the process. We invite any suggestions commenters may have for 
improving the transparency of any aspect of the process, as outlined in 
this proposal. We also invite comment on whether the process for adding 
plants to the NAPPRA category is sufficiently scientifically rigorous.
    The December 2004 ANPR also discussed consolidating the regulations 
governing plants for planting into one subpart. As discussed above, we 
are proposing to address risks posed by importation of plants for 
planting that are potential quarantine pests themselves and risks posed 
by importation of plants for planting that are potential hosts of 
quarantine pests in the same section of the nursery stock regulations. 
We plan to pursue consolidating all the regulations governing the 
importation of plants for planting into a single subpart in a later 
document.

Detailed Description of NAPPRA Category and Associated Changes

Definitions

    The regulations currently do not contain definitions of the terms 
noxious weed, official control, planting, plants for planting, 
quarantine pest, and taxon. (The concept of official control is part of 
the IPPC definition of quarantine pest.) Therefore, we are proposing to 
add definitions for these terms to the ``Definitions'' section in Sec.  
319.37-1.
    We would add a definition of noxious weed based on the definition 
of that term in the Plant Protection Act. The definition of ``noxious 
weed'' in the Plant Protection Act refers to nursery stock rather than 
plants for planting; the definition we would add in Sec.  319.37-1 
would refer to plants for planting, to be consistent with the other 
changes we are making to the regulations. Thus, the definition of 
noxious weed would read as follows:
    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.
    The other definitions we are proposing to add are based on 
definitions in the IPPC Glossary of Phytosanitary Terms. These 
definitions would read as follows:
    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 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.
    Taxon (taxa). Any grouping within botanical nomenclature, such as 
family, genus, species, or cultivar.
    The definition of official control is based on the definition in 
the IPPC Glossary of Phytosanitary Terms. However, our proposed 
definition does not include the provisions of the IPPC definition that 
address regulated non-quarantine pests, because the plants for planting 
regulations do not presently include provisions for regulating non-
quarantine pests. 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 
definition.
    We would use ``plants for planting'' in the proposed regulations 
where we would have formerly used the term ``nursery stock.'' We would 
remove the definition of nursery stock and replace the references to 
nursery stock in the definitions of prohibited article and restricted 
article with references to ``plants for planting.'' We would also 
revise the title of the subpart that contains the regulations to read 
``Subpart--Plants for Planting.''
    The definition of quarantine pest is based on the definition in the 
IPPC Glossary of Phytosanitary Terms. The definition we are proposing 
differs in two ways from the IPPC definition:
    <bullet> The definition of quarantine pest that we are proposing 
refers to ``a plant pest or noxious weed'' rather than ``a pest.'' Such 
an approach is consistent with our authority under the Plant Protection 
Act, which specifically refers

[[Page 36408]]

to plant pests and noxious weeds. It is also consistent with the IPPC 
definition, since the IPPC definition of ``pest'' includes plants as 
well as animals and pathogenic agents. (The Plant Protection Act 
definition of noxious weeds 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 Glossary 
of Phytosanitary Terms explains that the term ``economic importance'' 
is to be understood as having a broad meaning encompassing potential 
damage to the natural environment as well.)
    <bullet> The definition of quarantine pest that we are proposing 
also specifically refers to the United States.
    In addition to adding a definition of quarantine pest to the 
regulations, we are proposing to remove the term plant pest and add the 
term quarantine pest in its place in the regulations. We would also 
remove the definition of plant pest in Sec.  319.37-1. APHIS takes 
action on plant pests based on whether they qualify as quarantine 
pests, in keeping with our commitments under international trade 
agreements. For example, APHIS typically would not restrict the 
importation of a taxon of plants for planting because it could 
introduce a plant pest if that plant pest is already present in the 
United States and not under official control; such a restriction could 
be inconsistent with the national treatment principle of the WTO. 
Therefore, we believe it is appropriate to refer specifically to 
quarantine pests rather than to plant pests in the plants for planting 
regulations.

Regulating Noxious Weeds Through the NAPPRA Category

    The nursery stock regulations in Sec. Sec.  319.37 through 319.37-
14 currently address only plants for planting that have been determined 
to be hosts of quarantine pests. Plants for planting that are 
themselves quarantine pests have been regulated under 7 CFR part 360, 
``Noxious Weed Regulations.'' However, the new definition of quarantine 
pest that we are proposing includes a specific reference to noxious 
weeds, and the definition of noxious weed from the Plant Protection Act 
would be added to the regulations as well, meaning that the definition 
of quarantine pest would allow us to address both plants for planting 
that are potential hosts of quarantine pests and plants for planting 
that are potential noxious weeds (i.e., quarantine pest plants).
    We are proposing to address the potential risks posed by the 
importation of taxa of plants for planting that could be quarantine 
pests themselves and those that could serve as hosts for quarantine 
pests through the same set of proposed regulations. This decision 
follows from a potential change to the regulations we discussed in the 
December 2004 ANPR, in which all the regulations relating to the 
importation of plants for planting would be consolidated into a single 
subpart. (Commenters who addressed this issue generally approved of 
consolidating the plants for planting regulations.) We are not 
proposing to consolidate the plants for planting regulations in this 
document, but we do not want to further disperse the regulations 
governing plants for planting by establishing separate provisions for 
the NAPPRA category in 7 CFR part 319 (for potential hosts of 
quarantine pests) and 7 CFR part 360 (for potential pest plants). We 
welcome public comment on this approach.

Proposed Process for Adding Taxa of Plants for Planting to the NAPPRA 
Category

    We are proposing to add a new Sec.  319.37-2a, ``Taxa whose 
importation is not authorized pending pest risk analysis,'' to the 
regulations to describe the process by which taxa of plants for 
planting would be added to the lists of taxa whose importation is not 
authorized pending pest risk analysis (the ``NAPPRA lists''), to 
describe the criteria we would use when determining whether to add a 
taxon to the NAPPRA lists, and to provide instructions to persons who 
wish to request that taxa be removed from the NAPPRA lists.
    Paragraph (a) of proposed Sec.  319.37-2a would state that we have 
determined that certain taxa of plants for planting potentially pose a 
risk of introducing quarantine pests into the United States and that 
the importation of these taxa is not authorized pending the completion 
of a pest risk analysis.
    There would be two lists of taxa whose importation is not 
authorized pending pest risk analysis: A list of taxa of plants for 
planting that are potential quarantine pests, and a list of taxa of 
plants for planting that are potential hosts of quarantine pests. These 
lists would be established on the PPQ Web site at http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37.shtml.
    For taxa that had been determined to be potential quarantine pests, 
the list would include the names of the taxa. For the list of taxa that 
had been determined to be potential hosts of quarantine pests, the list 
would include:
    <bullet> The names of the taxa;
    <bullet> The foreign places from which the taxa's importation is 
not authorized; and
    <bullet> The quarantine pests of concern.
    The list would indicate that the importation of seed from taxa 
listed as potential hosts of quarantine pests is permitted unless 
specifically restricted by APHIS based on scientific evidence that the 
associated pest is seedborne. Even when a taxon is determined to be a 
potential host of a quarantine pest, its seed can often be imported 
safely, depending on the biology of the pest.
    Proposed paragraph (b) would describe the process by which APHIS 
would add taxa to the NAPPRA lists.
    Under proposed paragraph (b)(1), APHIS would publish in the Federal 
Register a notice announcing our determination that a taxon of plants 
for planting is either a potential quarantine pest or a potential 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. 
In the notice, we would provide for a public comment period of a 
minimum of 60 days on our proposed addition to the list.
    Proposed paragraph (b)(2) would describe how we would respond to 
comments on the notices. APHIS would 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:
    <bullet> No comments were received on the data sheet;
    <bullet> The comments on the data sheet revealed that no changes to 
the data sheet were necessary; or
    <bullet> 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 
that the taxon does not pose a potential risk of introducing a 
quarantine pest into the United States, APHIS would not add the taxon 
to the NAPPRA list. We would issue a notice giving public notice of 
this determination after the close of the comment period.
    This proposed process for adding taxa of plants for planting to the 
NAPPRA lists would streamline the process of taking action based on 
sound scientific evidence while providing the public with the 
opportunity to participate. We

[[Page 36409]]

invite public comment on the process we have described.
    The process for removing taxa from the NAPPRA lists is discussed in 
detail later in this document under the heading ``Process for Removing 
Taxa of Plants for Planting from the NAPPRA Category.''

Sources of Scientific Evidence for Taxa That Are Potential Quarantine 
Pests

    Paragraphs (c) and (d) of proposed Sec.  319.37-2a would describe 
the criteria that we would use in determining whether to add a taxon of 
plants for planting to the NAPPRA category.
    For both taxa of plants for planting that are potential quarantine 
pests and taxa of plants for planting that are potential hosts of 
quarantine pests, we are basing our steps for making a determination 
and the sources of scientific evidence we would use to make the 
determination on ``Criteria for adding plants to a new category of 
plants for planting, `Not Authorized Pending Risk Analysis' (NAPRA),'' 
a document discussed at the May 25, 2005, meeting and revised in 
October 2005. We have made some modifications to the wording and 
application of these criteria in this proposed rule. We have also 
simplified the criteria where possible.
    Proposed paragraph (c) would state that 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 potential quarantine pest, as we are proposing to define 
that term in Sec.  319.37-1.
    There are several 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. 
Those sources include, but are not necessarily limited to, the 
following:
    <bullet> National and international pest alerts, reports, and 
quarantine lists.
    <bullet> Articles from peer-reviewed scientific journals or other 
published scientific literature. Examples of journals that we might 
consult to determine whether a taxon is a potential quarantine pest are 
Weed Science and Plant Protection Quarterly.
    <bullet> Published international weed references. Two examples of 
international weed references we might use are 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).
    <bullet> Information from international databases, such as the Crop 
Protection Compendium (CPC). The CPC is an interactive, encyclopedic 
tool that draws together information on all aspects of crop protection. 
The CPC is composed of information sourced from experts. It is edited 
and compiled by an independent scientific organization and draws 
resources from a diverse international development consortium. It is 
published on CD-ROM and on the Internet and is updated annually. We 
would consider using other international databases of similar repute as 
well.
    <bullet> Reports from regional plant protection organizations, such 
as NAPPO and the European and Mediterranean Plant Protection 
Organization, and from professional societies such as the Weed Science 
Society of America (WSSA).
    <bullet> 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. Most 
scientific screening systems and predictive models are question-based 
scoring methods that ask about climatic preferences, biological 
attributes, and reproductive and dispersal methods. Often a system 
generates a numerical score, which is used to rank species to determine 
which species are the highest priorities for official control or to 
determine whether a taxon can be imported into a country or area. Some 
systems are used to predict whether a species may be a weed of 
agriculture or the environment.
    APHIS specifically requested that WSSA develop the prioritization 
model to screen taxa of plants for planting that could be quarantine 
pests and to rank the taxa based on how much potential risk they pose. 
WSSA has also provided detailed fact sheets on the taxa deemed to pose 
the greatest risk. We plan to use the information generated by the WSSA 
to add taxa to the NAPPRA category.\8\
    We would also consider using other work that is being done in this 
area. Several such systems besides the WSSA prioritization model 
already exist, including models developed by Australia, Western 
Australia, and the Hawaiian Ecosystems at Risk project. Several 
university scientists are also studying invasiveness prediction, and 
some have published articles on various models.\9\
---------------------------------------------------------------------------

    \8\ Parker, C., B.P. Caton and L. Fowler. 2007. ``Ranking non-
indigenous weed species by their potential to invade the United 
States: `The Parker model.' '' Weed Science 55:386-397.
    \9\ See, for example, ``Predicting Invasions of Woody Plants in 
North America'' (Reichard and Hamilton, 1997).
---------------------------------------------------------------------------

    <bullet> Any information available from other APHIS PRAs, including 
the weediness screening portions of APHIS fruit and vegetable commodity 
PRAs. As mentioned earlier in this document, APHIS conducts PRAs to 
determine whether and how fruits or vegetables can be imported into the 
United States. One of the first steps in a fruit and vegetable PRA is a 
weediness screening of the commodity itself. A taxon of plants for 
planting might be identified as a candidate for the NAPPRA category 
because it was identified as a potential quarantine pest in an 
assessment that was initiated by a request to import the taxon for 
human consumption. The PRA will indicate what sources led the risk 
assessor to make the determination that the taxon, if imported for 
planting, could be a quarantine pest; we would then consult those 
sources to determine whether to add it to the NAPPRA category.
    It is important to note that APHIS would not automatically 
determine that a taxon should be added to the NAPPRA category simply 
because some scientific evidence indicates that the taxon is a 
potential quarantine pest. An obvious example is that if a foreign 
country has a taxon of plants for planting on its quarantine list, we 
would not use that evidence to add the taxon to the NAPPRA category if 
the taxon is already present and not under official control in the 
United States. Another example: If a weediness screening model 
predicted that a certain taxon was a potential quarantine pest, but 
other evidence indicated that the taxon was not likely to be a 
quarantine pest, we might not add that taxon to the NAPPRA category. 
The sources of scientific evidence described here would serve as a 
basis for judgment; the existence of evidence from these sources would 
not replace the judgment of PPQ technical experts.
    For those sources of scientific evidence for which we have provided 
examples, it is important to note that the examples are not intended to 
be exhaustive. For example, we would consider evidence from all peer-
reviewed scientific journals in determining whether to add a taxon of 
plants for planting to the NAPPRA category, not just those we have 
listed for the purposes of illustration. Similarly, we would consider 
information from scientific screening systems other than the WSSA's 
system, provided that we judged those screening

[[Page 36410]]

systems to be as rigorous and useful as the WSSA's system.

Sources of Scientific Evidence for Taxa That Are Potential Hosts of 
Quarantine Pests

    Proposed paragraph (d) would describe the criteria that APHIS would 
use in making the determination that a taxon of plants for planting is 
a potential host of a quarantine pest that should be added to the 
NAPPRA category. The following criteria would have to be fulfilled in 
order to make this determination:
    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.
    There are several sources of scientific evidence that we anticipate 
using to make the determination that a taxon of plants for planting is 
a potential host of a quarantine pest, and thus that the taxon should 
be added to the NAPPRA category. The sources of evidence might include, 
but would not necessarily be limited to, the following:
    <bullet> National and international pest alerts, reports, and 
quarantine lists.
    <bullet> Reports and quarantine lists from State and local 
governments.
    <bullet> The Plant Protection and Quarantine plant pest 
interception database. PPQ maintains a centralized database system that 
is designed to help manage the APHIS-PPQ port interception information 
more effectively. The system is designed to record and track all 
quarantine significant pests found (intercepted) during inspection.
    <bullet> Articles from peer-reviewed scientific journals. Examples 
of journals that we might consult are Phytopathology, Plant Disease, 
Mycologia, Plant Pathology, Journal of Economic Entomology, and Annals 
of Applied Biology.
    <bullet> Other scientific publications used as references, on 
topics like entomology, plant pathology, nematology, agronomy, and 
horticulture. Examples of references we might consult are the 
Commonwealth Agriculture Bureau International's Abstracts on the above 
topics and the American Phytopathological Society's Compendium of Crop 
Diseases.
    <bullet> Information from international databases, such as the CPC.
    <bullet> Reports from regional plant protection organizations, such 
as NAPPO and the European and Mediterranean Plant Protection 
Organization, and from professional societies, such as the American 
Phytopathological Society and the Entomological Society of America.
    <bullet> Any information available from other APHIS PRAs, 
particularly PRAs prepared to allow the importation of plants in 
growing media under Sec.  319.37-8(e) and APHIS fruit and vegetable 
commodity PRAs. Besides containing a weediness screening component, as 
discussed earlier, APHIS fruit and vegetable commodity PRAs typically 
examine the scientific evidence and establishes a list of quarantine 
pests associated with all parts of the taxon of plants in question, 
even if not all of the plant would be imported for consumption. For 
example, while a pest associated with the stem of a plant may not 
affect importation of the fruit of that plant, it would be useful 
information in determining how to regulate that plant when it is 
imported for planting.
    As with taxa of plants for planting that are potential quarantine 
pests, we would not automatically consider a taxon of plants for 
planting a potential host of a quarantine pest based on the existence 
of scientific evidence from any of these sources. Similarly, the 
examples listed here are also not intended to be exhaustive; for 
example, we would consider reports from all professional societies 
whose activities involve plants for planting, not just those that we 
have listed as examples. We invite public comment on the process of 
determining whether a taxon is a potential quarantine pest or a 
potential host of a quarantine pest.

Proposed Process for Removing a Taxon From the NAPPRA Lists

    Paragraph (e) of proposed Sec.  319.37-2a would state 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 
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. It is likely that providing such information would 
allow us to complete a PRA more promptly than we would otherwise be 
able to.
    Once a request has been submitted to remove a taxon of plants for 
planting from one of the NAPPRA lists, PPQ would conduct a PRA to 
determine the risk associated with the importation of that taxon. Upon 
completion of the PRA, PPQ would 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.
    If the PRA supported a determination that importation of the taxon 
should be prohibited or allowed subject to special restrictions, we 
would then publish a proposed rule that would make the PRA available to 
the public and propose to take the action recommended by the PRA. We 
would consider any comments we received on the proposed rule and 
finalize the action through a final rule. This process would be 
identical to the process currently used to prohibit or place special 
restrictions on the importation of a taxon.
    If the PRA supported a determination that importation of the taxon 
should be allowed subject to the general requirements of the plants for 
planting regulations, we would publish a notice announcing our intent 
to remove the taxon from the NAPPRA list and making the PRA supporting 
the taxon's removal available for public review. We would respond to 
comments in a manner similar to that proposed for responding to 
comments on notices adding taxa to the NAPPRA lists.

Allowing Importation of Taxa on the NAPPRA List Through Permits

    The regulations in Sec.  319.37-2(c) provide that articles listed 
as prohibited articles in paragraphs (a) and (b) of Sec.  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 exist 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.
    Similar impetus would exist to import articles of taxa on the 
NAPPRA lists,

[[Page 36411]]

and we believe the conditions under which prohibited articles have been 
allowed to be imported would be effective at mitigating risks 
associated with importation of taxa on the NAPPRA lists as well. 
Therefore, we are proposing to amend Sec.  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 Sec.  
319.37-2a.
    A similar matter arises in the regulations in Sec.  319.37-12. This 
section indicates that a restricted article for importation into the 
United States may not be packed in the same container as a prohibited 
article. We would amend this requirement to indicate that a restricted 
article also may not be packed in the same container as an article 
whose importation is not authorized pending pest risk analysis.

Expanding the Scope of Plants for Planting Regulated in the Nursery 
Stock Subpart

    The definition of regulated plant in Sec.  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.'' We include a definition of regulated plant in the 
regulations because the definition of plant is drawn from the Plant 
Protection Act and does not specify the scope of plants that APHIS 
regulates in the nursery stock subpart.
    The definition of regulated plant does not include nonvascular 
green plants, such as mosses and green algae. However, in recent years 
mosses and green algae have been imported to be grown as ornamental 
plants, and commenters at our May 2005 meeting favored changing the 
regulations to explicitly include nonvascular green plants.
    Therefore, we are proposing to revise the definition of regulated 
plant to 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.'' This proposed change would update the 
regulations to reflect the full range of plants currently being allowed 
for importation.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The proposed rule has been determined to be 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 proposed rule. It 
provides a cost-benefit analysis as required by Executive Order 12866, 
as well as an initial regulatory flexibility analysis, which considers 
the potential economic effects of this proposed rule on small entities, 
as required by the Regulatory Flexibility Act. The economic analysis is 
summarized below. The full economic analysis may be viewed on the 
Regulations.gov Web site (see ADDRESSES at the beginning of this 
document for a link to Regulations.gov). You may request paper copies 
of the economic analysis by calling or writing to the person listed 
under FOR FURTHER INFORMATION CONTACT. Please refer to Docket No. 
APHIS-2006-0011 when requesting copies. The economic analysis is also 
available for review in our reading room (information on the location 
and hours of the reading room is listed under the heading ADDRESSES at 
the beginning of this document).
    The proposed rule would amend the regulations by establishing a new 
category of taxa of plants for planting whose importation is not 
authorized pending pest risk analysis. The NAPPRA category would 
include a list of taxa that have the potential to be quarantine pest 
plants, and therefore could be noxious weeds, and a list of taxa that 
are potential hosts for quarantine pests. This action is being proposed 
in order to provide phytosanitary protection commensurate with the 
risks posed by the importation of plants for planting.
    Establishing the NAPPRA category would better protect U.S. 
agriculture and the environment from the introduction of plant pests 
and noxious weeds into the United States by allowing APHIS to take 
timely action to prevent their importation. Strengthening our 
safeguards against these invasive pests is expected to result in far-
reaching economic and environmental benefits. In 1999, the National 
Plant Board reported that introduced invasive plant pests cost about 
$41 billion annually in lost production and in prevention and control 
expenses. One study estimates that in U.S. agriculture, noxious weeds 
cause an overall reduction in crop yield of 12 percent, which 
translates into a $23.4 billion loss annually.\10\ It is important to 
note that invasive plant pests cause significant control expenses in 
addition to lost production. As a result of nonindigenous weeds, 
approximately $3 billion is spent each year on herbicides that are 
applied to U.S. crops. Pimentel et al. (2000) further estimate 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. Crop losses to invasive pests 
and weeds and related control costs contribute to lower levels of 
domestic production and, in general, higher prices for consumers. Given 
the current rate of inflation, it is estimated that the introduction of 
invasive plant pests could cost between $26.0 and 52.5 billion annually 
in lost production, prevention, and control costs depending on the 
value of the host crop. Furthermore, reduced crop yields could result 
in $29 billion in damages annually.\11\
---------------------------------------------------------------------------

    \10\ Pimentel, D., L. Lach, R. Zuniga, and D. Morrison. 
``Environmental and Economic Costs of Nonindigenous Species in the 
United States.'' BioScience 50.1 (2000): 53-65.
    \11\ A Consumer Price Index (CPI) price as estimated and 
reported by the Bureau of Labor Statistics is used to measure the 
current rate of inflation based on 1999 and 2000 dollars.
---------------------------------------------------------------------------

    Recent introductions of pests of plants demonstrate the need for 
proactively addressing the risks of invasive pests and the possible 
impacts we would avoid or lessen as a result of this proposed rule. For 
instance, in 2001 a plant pest called the citrus longhorned beetle 
(CLHB) was imported in a shipment of bonsai maple trees and detected in 
a Washington State nursery. The resulting response involved 
quarantining an area having a 1/2-mile radius around the infestation 
site, destroying about 1,000 trees, injecting surrounding trees with an 
insecticide to prevent the infestation's spread, and surveying of more 
than 20,000 trees in the quarantined area. As a result of these 
efforts, no new CLHB cases have been reported.\12\
---------------------------------------------------------------------------

    \12\ ``Citrus Longhorned Beetle Eradication Project.'' 
Washington State Department of Agriculture (http://www.agr.wa.gov).
---------------------------------------------------------------------------

    Washington State officials responded aggressively to the CLHB 
introduction in light of the devastation caused on the East Coast by a 
similar introduced pest, the Asian longhorned beetle (ALB), which is 
believed to have been introduced via the importation of untreated wood 
packaging material. The fight to eradicate ALB has persisted for more 
than 11 years, and has involved the destruction of thousands of beetle-
infested trees, and over 230 square miles

[[Page 36412]]

have been quarantined, at a total cost of more than $350 million in 
public funds including APHIS and State obligations. APHIS obligations 
from 1997 to 2008 total $282 million, including more than $113 million 
in Commodity Credit Corporation transfers. State obligations for New 
York, New Jersey, and Illinois during the same time period amounted to 
nearly $68 million, and an additional $11.6 million was made available 
for the 2009 fiscal year. APHIS has treated approximately 72,000 trees 
susceptible to ALB with an insecticide in New York and New Jersey in 
2009.
    As another example of a pest introduced via the importation of 
plants for planting, in February 2003 the plant pathogen Ralstonia 
solanacearum race 3 biovar 2 was detected in geraniums in four 
greenhouses in Illinois, Indiana, Michigan, and Wisconsin. This plant 
pathogen was traced back to infected geraniums imported from Kenya. The 
resulting response cost growers and regulators an estimated $7 million 
and involved the destruction of over 2 million plants.\13\ These are 
just two examples of the costs incurred due to the introduction of 
invasive pests that this proposed rule would help to prevent.
---------------------------------------------------------------------------

    \13\ ``Biology and Pathogenesis of Ralstonia Solanacearum Race 3 
on Geraniums,'' 2004 Annual Report. Beltsville, MD: Agricultural 
Research Service.
---------------------------------------------------------------------------

    Another benefit of the proposed NAPPRA process involves 
streamlining the APHIS-PPQ process for addressing the risk associated 
with the importation of potential plant pests and noxious weeds prior 
to their introduction into the United States. Under the current 
regulations, we typically provide notice of our intent to designate 
plants for planting as prohibited articles, or place additional 
restrictions on their importation, through proposed rules, and we often 
complete a pest risk analysis (PRA) to support such a designation. 
However, under the new NAPPRA program, we would prohibit the 
importation of a plant taxon that has been scientifically shown to be a 
potential quarantine pest or a potential host of a quarantine pest 
prior to its importation. As such, our protection against potential 
pests would be increased, thus providing sufficient protection to the 
environment and to U.S. agricultural products that are vulnerable to 
these pests.
    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. As the taxa included in the 
NAPPRA lists would not be plants for planting currently imported into 
the United States, we presume they would not be economically important 
to any U.S. entities. While entities and individuals wanting to import 
these plants for planting in the future may be affected, this proposed 
rule establishing the NAPPRA category would not pose direct impacts on 
domestic entities, including producers.
    Entities and individuals that potentially would be interested in 
importing these plants for planting in the future could be affected 
through the addition of taxa to the NAPPRA lists through the notice 
process. Such entities would comprise farm supplies merchant 
wholesalers (North American Industry Classification System [NAICS] code 
424910); flower, nursery stock, and florists' supplies merchant 
wholesalers (NAICS code 424930); and nursery and garden centers (NAICS 
code 444220). Comparing statistics from the 2002 Economic Census with 
the Small Business Administration's size standards, we have determined 
that the majority of these entities would be considered small by SBA 
standards. However, it is important to note that there would be no 
immediate impact on these small entities as a result of this proposed 
rule, which would simply establish the NAPPRA regulations.
    The proposed NAPPRA program, with its accompanying restrictions on 
the importation of plants, may also have an economic effect on plant 
societies. Membership fees associated with these societies allow 
members to engage in the exchange of seed or plant material. We are 
unable to classify the extent of potential economic effects on such 
entities at this time; however, we welcome public comment that would 
clarify our understanding on this matter.
    The proposed rule could affect the workload of other Federal 
agencies. Plant inspection activity at ports of entry conducted by the 
Bureau of Customs and Border Protection and by PPQ may become more 
stringent to ensure that plant taxa on the NAPPRA list are not allowed 
entry. Accordingly, PPQ staff would develop identification aids to 
assist port inspectors in targeting taxa on the NAPPRA list. Importers, 
including those Federal agencies that do research on NAPPRA taxa, would 
have to obtain a special permit prior to importing plants for planting 
that are listed under NAPPRA. As a result, depending on the number of 
species that are of interest for research purposes and the taxa 
included on one of the NAPPRA lists, PPQ's workload for processing 
permit applications could increase. Additionally, in the future, as PPQ 
receives requests to remove taxa from the NAPPRA list, the workload for 
processing PRAs could increase.
    Under the proposed rule, APHIS would be able to more efficiently 
respond to immediate risks associated with the importation of plants 
for planting. This proposed rule would establish a framework for 
restricting the importation of specific taxa of plants for planting in 
the future.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) No 
retroactive effect will be given to this rule, and (2) administrative 
proceedings will not be required before parties may file suit in court 
challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

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 propose to amend 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

    2. The heading of the subpart consisting of Sec. Sec.  319.37 
through 319.37-14 is revised to read as set forth above.


Sec.  319.37  [Amended]

    3. In Sec.  319.37, paragraph (b) is amended 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 definitions of nursery stock and plant pest.

[[Page 36413]]

    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.


Sec.  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 Sec.  319.37-2(a) or (b) of this subpart, 
any articles whose importation is not authorized pending pest risk 
analysis under Sec.  319.37-2a of this subpart, and excluding any 
articles regulated in Sec. Sec.  319.8 through 319.24 or 319.41 through 
319.74-4 and any articles regulated in part 360 of this chapter.
* * * * *
    Taxon (taxa). Any grouping within botanical nomenclature, such as 
family, genus, species, or cultivar.
* * * * *


Sec.  319.37-2  [Amended]

    5. Section 319.37-2 is amended as follows:
    a. In paragraph (a), in the third column 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 Sec.  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 Sec.  319.37-2a is added to read as follows:


Sec.  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 potentially 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. Lists of these taxa may be found on the Internet at http://www.aphis.usda.gov/import_export/plants/plant_imports/Q37.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 
potential quarantine pests, and a list of taxa of plants for planting 
that are potential hosts of quarantine pests. For taxa of plants for 
planting that have been determined to be potential quarantine pests, 
the list includes the names of the taxa. For taxa of plants for 
planting that are potential 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 potential quarantine pest or a potential 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 potential quarantine pest or a potential 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 and specify a proposed effective date 
for the addition of the taxon to the list of taxa of plants for 
planting whose importation is not authorized pending pest risk 
analysis.
    (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 potential 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 potential risk of introducing a 
quarantine pest into the United States, APHIS will not add the taxon 
from 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 
potential 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 
potential quarantine pest.
    (d) Criteria for listing a taxon of plants for planting as a 
potential 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 
potential host of a quarantine pest. The following criteria must be

[[Page 36414]]

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 
potential host of that quarantine pest.
    (e) Removing a taxon from the list of taxa not authorized pending 
pest risk analysis. Any person may request that APHIS remove a taxon 
from the list of taxa whose importation is not authorized pending pest 
risk analysis. Persons who submit such a request are encouraged to 
provide as much information as possible regarding the taxon and any 
quarantine pests that may be associated with it. 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.
    (1) 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.
    (2) 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 NAPPRA list 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 taxon 
poses a potential 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.


Sec.  319.37-5  [Amended]

    7. In Sec.  319.37-5, paragraph (i) introductory text is amended by 
removing the words ``plant diseases'' and adding the words ``quarantine 
pests'' in their place.


Sec.  319.37-7  [Amended]

    8. 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 adding the words 
``quarantine pests'' in their place.
    c. In paragraph (d)(5), by removing the words ``injurious plant 
disease, injurious insect pest, or other plant pest'' and adding the 
words ``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.


Sec.  319.37-8  [Amended]

    9. 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.
    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) introductory text, 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'' and adding the words ``quarantine 
pests'' in their place.
    10. Section 319.37-12 is revised to read as follows:
    Sec.  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 Sec.  319.37-2a of this subpart.


Sec.  319.37-13  [Amended]

    11. 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 17th day of July 2009.
Cindy Smith,
Acting Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. E9-17535 Filed 7-22-09; 8:45 am]
BILLING CODE 3410-34-P