[Federal Register Volume 71, Number 64 (Tuesday, April 4, 2006)]
[Proposed Rules]
[Pages 16711-16716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-4840]
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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. 71, No. 64 / Tuesday, April 4, 2006 /
Proposed Rules
[[Page 16711]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. APHIS-2005-0103]
RIN 0579-AB98
Special Need Requests Under the Plant Protection Act
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend our domestic quarantine regulations
to establish a process by which a State or political subdivision of a
State could request approval to impose prohibitions or restrictions on
the movement in interstate commerce of specific articles that are in
addition to the prohibitions and restrictions imposed by the Animal and
Plant Health Inspection Service. The Plant Protection Act provides that
States or political subdivisions of States may make such special need
requests, but there are currently no procedures in place for their
submission or consideration. This action would establish a process by
which States may make a special need request.
DATES: We will consider all comments that we receive on or before June
5, 2006.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower ``Search Regulations and Federal
Actions'' box, select ``Animal and Plant Health Inspection Service''
from the agency drop-down menu, then click on ``Submit.'' In the Docket
ID column, select APHIS-2005-0103 to submit or view public comments and
to view supporting and related materials available electronically.
After the close of the comment period, the docket can be viewed using
the ``Advanced Search'' function in Regulations.gov.
Postal Mail/Commercial Delivery: Please send four copies
of your comment (an original and three copies) to Docket No. APHIS-
2005-0103, 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-2005-0103.
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: Mr. James Writer, Agriculturist,
Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road Unit
137, Riverdale, MD 20737-1231; (301) 734-7121.
SUPPLEMENTARY INFORMATION:
Background
The Plant Protection Act (PPA, 7 U.S.C. 7701 et seq.) gives
authority to the Secretary of Agriculture to prohibit or restrict the
importation, entry, exportation, or movement in interstate commerce of
any plant, plant product, biological control organism, noxious weed,
article, or means of conveyance if the Secretary determines that the
prohibition or restriction is necessary to prevent the introduction of
a plant pest or noxious weed into the United States, or the
dissemination of a plant pest or noxious weed within the United States.
The Secretary has delegated this authority to the Administrator of the
Animal and Plant Health Inspection Service (APHIS).
Under section 436 of the PPA (7 U.S.C. 7756), no State or political
subdivision of a State may regulate the movement in interstate commerce
of any article, means of conveyance, plant, biological control
organism, plant pest, noxious weed, or plant product in order (1) to
control a plant pest or noxious weed; (2) to eradicate a plant pest or
noxious weed; or (3) to prevent the introduction or dissemination of a
biological control organism, plant pest, or noxious weed if the
Secretary has issued a regulation or order to prevent the dissemination
of the biological control organism, plant pest, or noxious weed within
the United States. The only exceptions to this prohibition are when a
State or political subdivision of a State imposes regulations which are
consistent with and do not exceed the regulations or orders issued by
the Secretary, or when the State or political subdivision of a State
demonstrates to the Secretary, and the Secretary finds, that there is a
special need for additional prohibitions or restrictions based on sound
scientific data or a thorough risk assessment.
Although the PPA provides that the Secretary may grant a request
from a State or political subdivision of a State for a special need
exception, APHIS has not issued criteria regarding the content,
submission, and consideration of such requests. Therefore, in this
document, we are proposing to amend our domestic quarantine notices in
7 CFR part 301 by adding a new ``Subpart--Special Need Requests'' (7
CFR 301.1 through 301.1-3) in which we would set out procedures for the
submission and handling of special need requests. Proposed Sec. 301.1
would detail the purpose and scope of the new subpart, and proposed
Sec. 301.1-1 would provide definitions for certain terms used in the
subpart. Proposed Sec. 301.1-2 would spell out the information that a
State or a political subdivision of a State applying for a special need
exception would have to provide, and proposed Sec. 301.1-3 would
explain the actions that APHIS would take following its receipt of a
special need request.
Purpose and Scope
Section 301.1 of the proposed regulations would explain the purpose
of the new subpart and how the subpart may be used in accordance with
the PPA and the implementing regulations. Paragraph (a) would describe
what a special need request is in the context of the PPA. Paragraph (b)
would explain that the subpart contains instructions for the submission
and consideration of special need requests under the PPA.
Definitions
Section 301.1-1 of the proposed regulations would contain eight
[[Page 16712]]
standard definitions that are consistent with those used elsewhere in
our regulations. We would define Administrator as the Administrator of
the Animal and Plant Health Inspection Service or any person authorized
to act for the Administrator; Animal and Plant Health Inspection
Service (APHIS) as the Animal and Plant Health Inspection Service of
the United States Department of Agriculture; and biological control
organism as any enemy, antagonist, or competitor used to control a
plant pest or noxious weed. We would also define interstate commerce as
trade, traffic, or other commerce (A) from one State into or through
any other State; or (B) within the District of Columbia, Guam, the
Virgin Islands of the United States, or any other territory or
possession of the United States; move (moved, movement) as shipped,
offered to a common carrier for shipment, received for transportation
or transported by a common carrier, or carried, transported, moved, or
allowed to be moved; and noxious weed as any plant or plant product
that can directly or indirectly injure or cause damage to crops
(including nursery stock or plant products), livestock, poultry, or
other interests of agriculture, irrigation, navigation, the natural
resources of the United States, the public health or the environment.
In addition, we would define plant pest as any living stage of any
insects, mites, nematodes, slugs, snails, protozoa, or other
invertebrate animals, bacteria, fungi, other parasitic plants or
reproductive parts thereof, viruses, or any organisms similar to or
allied with any of the foregoing, or any infectious substances which
can directly or indirectly injure or cause disease or damage in any
plants or parts thereof or any processed, manufactured, or other
products of plants; and State as the District of Columbia, Puerto Rico,
the Northern Mariana Islands, or any State, territory, or possession of
the United States.
Submission of Requests
Section 301.1-2 of the proposed regulations would describe the
information that would have to be included in any request to the
Administrator for a special need exception. As our contacts are at the
State level, paragraph (a) would provide that a special need request
generated by a political subdivision of a State would have to be
submitted to APHIS through the State. Paragraph (a) would also state
that all special need requests must be signed by the appropriate
executive official or a plant protection official of the State and must
contain the following information:
Data drawn from a scientifically sound detection survey,
showing that the biological control organism, noxious weed, or plant
pest of concern does not exist in the State or political subdivision
or, if already present in the State or political subdivision, the
distribution of the biological control organism, noxious weed, or plant
pest of concern;
If the biological control organism, noxious weed, or plant
pest is not present in the State or political subdivision, a risk
analysis or other scientific data showing that the biological control
organism, noxious weed, or plant pest could enter the State or
political subdivision and become established;
Specific information showing that, if introduced into or
allowed to spread within the State or political subdivision, the
biological control organism, noxious weed, or plant pest would harm or
injure the environment, and/or cause economic harm to industries in the
State or political subdivision, including direct information about what
harm or injury would result from establishment of the biological
control organism, noxious weed, or plant pest in the State or political
subdivision;
Specific information showing that the State or political
subdivision has characteristics that make it particularly vulnerable to
the biological control organism, noxious weed, or plant pest, such as
unique plants, diversity of flora, historical concerns, or any other
special basis for the request for additional restrictions or
prohibitions; and
Information detailing the proposed additional prohibitions
or restrictions, and scientific data demonstrating that the proposed
additional prohibitions or restrictions would be necessary and
adequate, and that there is no less drastic action that is feasible and
that would be adequate, to prevent the introduction and spread of the
biological control organism, noxious weed, or plant pest in the State
or political subdivision.
We believe that this specific information, which would be
considered along with more general information available to APHIS,
would be necessary for the Administrator to be able to determine
whether to grant or deny a request for a special need exception.
Paragraph (b) would provide an address for the submission of requests.
Action on Special Need Requests
Section 301.1-3 of the proposed regulations would explain the
process APHIS would use following the receipt of a special need
request. Paragraph (a) would provide that, upon receipt of a complete
special need request submitted in accordance with Sec. 301.1-2, we
would publish a notice in the Federal Register announcing the
availability of the special need request. This notice would provide a
location where the public could view the request along with all
materials submitted in support of the request.
Paragraph (b) would state that, following the close of the comment
period, we would publish another notice to advise the public of the
Administrator's decision to either grant or deny the special need
request. The Administrator's determination would be based upon his or
her review and evaluation of the information submitted by the State or
political subdivision in support of its request and would take into
account any comments received.
The Administrator's finding that the State or political subdivision
has demonstrated, based on sound scientific data or a thorough risk
assessment, that there is a special need for additional prohibitions or
restrictions would mean that the State or political subdivision would
be authorized to impose specific prohibitions or restrictions that go
beyond those identified in the regulations or orders issued by APHIS.
APHIS would work with the State to ensure that the additional
prohibitions or restrictions are within the scope of the special need
exception granted by the Administrator. If the Administrator denied a
special need request, the reasons for the denial would be communicated
to the State or political subdivision and reported in a follow-up
Federal Register notice. A State or political subdivision that has had
its request denied would be given the opportunity to submit additional
supporting information in order to request a reconsideration of its
request. If the Administrator withdraws approval of a special need
exception, the reasons for the withdrawal would be communicated to the
State or political subdivision and reported in the Federal Register.
Reasons for withdrawal of approval of a special need exception may
include the availability of new scientific data or changes in APHIS
regulations.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. This 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.
For this rule, we have prepared an economic analysis. The economic
analysis provides a cost-benefit analysis
[[Page 16713]]
as required by Executive Order 12866, as well as an analysis of the
potential economic effects of this proposed rule on small entities, as
required under 5 U.S.C. 603. The economic analysis is set forth below.
Introduction
Under the Plant Protection Act, section 436 (7 U.S.C. 7756(b)(2)),
States and political subdivisions of States may request restrictions
and prohibitions that are in addition to restrictions and prohibitions
imposed by our Federal regulations if there is a special need for a
higher level of protection for that State or political subdivision.
APHIS proposes to require that States and political subdivisions of
States that wish to request additional restrictions or prohibitions on
the interstate movement of articles into their jurisdictions provide
the following information, and APHIS would evaluate the information to
determine whether States or political subdivisions have adequately
demonstrated a special need under the Plant Protection Act:
A State or political subdivision of a State that requests
additional restrictions or prohibitions based on a special need must
show that the pest of concern does not exist in the State. Therefore a
request should include current data showing that a scientifically sound
detection survey was performed in the State, and the pest was not
found.
The pest should be a true concern for the State or
political subdivision of a State, which would be documented with a pest
risk assessment or other scientific data showing that the pest could
enter the State and become established.
The pest should be of significant concern for the State or
political subdivision of a State, in that it would harm or injure the
environment, and/or cause economic harm to industries in the State. The
request should contain direct information about what harm or injury
would result from establishment of the pest in the State.
The State or political subdivision of a State should list
characteristics that make it particularly vulnerable to the pest, such
as unique plants, diversity of flora, historical concerns, or any other
special basis for the request for additional restrictions or
prohibitions.
Expected Benefits
The principal benefit for entities in a special need area would be
the pest risk reduction attributable to the action. The risk of entry
and establishment of a pest of concern both prior to and after the
granting of a special need request would need to be estimated before
the benefit of the reduced risk could be determined. It is unlikely
that these risk levels would be measurable.
Other possible benefits of a special need request would be easier
to calculate. Reduced pest risk due to additional restrictions or
prohibitions may mean that certain mitigation measures in the special
need area would no longer be considered necessary. There may be less
need for inspections, special permits, certain pesticide applications,
special handling or packaging, or other safeguards practiced or
required prior to the granting of the special need request. Costs
forgone once the request has been granted would represent benefits of
the action.
Agricultural and other entities in a special need area may also
benefit from the reduced availability of articles restricted or
prohibited because of the special need request. Restricted supplies
from sources outside the special need area could create increased
market opportunities for suppliers within the area. If quantities
normally purchased could not be provided by suppliers within the
special need area (or from outside sources that do not present a pest
risk), then suppliers likely would benefit from an increase in price.
Expected Costs
Costs would be incurred both in the special need area and in the
area placed under additional restrictions or prohibitions. In each
case, the size of the impact would depend upon the volume of supply
affected by a special need request. As just described, prices in a
special need area may increase if the available quantity of an article
is reduced because of restrictions or prohibitions. But gains for
suppliers within the special need area from price increases would come
at the expense of the area's consumers, and overall there would be a
net loss in social welfare. Losses may be incurred not only by end-
users, but also by intermediary entities. Stores selling the restricted
articles (nurseries, landscaping companies, grocery stores) may face
declining demand, depending upon the response of consumers to the price
increase, and reduced net revenues.
For the area placed under additional restrictions or prohibitions
because of a special need request, sales of affected articles may
decline if other replacement markets are not found. Even if shipments
to the special need area can be maintained, additional costs may be
incurred. For example:
Growers may be required to have inspections conducted more
frequently than APHIS would otherwise require (a cost that may be borne
by the State or political subdivision).
Growers (or the State or political subdivision) may be
required to pay for special phytosanitary certificates or permits.
Growers may incur costs related to additional risk
mitigations, such as particular pesticide applications or treatments,
netting, or special greenhouse equipment.
Additional inspections or restrictions may result in
shipping delays.
Shipping companies may experience reduced business or may
face additional costs related to container or sealing requirements of
the special need request.
Expected Net Effects
The overriding benefit for an area granted a special need request
would be the reduced risk of pest entry and establishment. Other,
market-related benefits are likely to be outweighed by costs incurred
in the special need area and in the area placed under additional
restrictions or prohibitions. Costs, including those associated with
additional risk mitigation requirements, may be borne by agricultural
entities, the public sector, or, most likely, a combination of the two.
Initial Regulatory Flexibility Analysis
Objectives and legal basis. Section 436(b) of the Plant Protection
Act requires that a State demonstrate to the Secretary that it has a
special need for additional restrictions or prohibitions, that the
Secretary agree that there is a special need, and that the additional
restrictions and prohibitions requested by the State be based on sound
scientific data or a thorough risk assessment. The proposed rule would
establish specific criteria by which a special need request from a
State would be evaluated.
Reason for the action. The desirability of specific criteria for
evaluating special need requests has become apparent from requests
received by the Agency from several States for additional restrictions
or prohibitions on the interstate movement of articles that would be
more restrictive than those imposed by the Phytophthora ramorum
regulations in 7 CFR 301.92 through 301.92-11.
Small entities that may be affected. Agricultural and other
entities would not be affected by the proposed rule, per se, but rather
by the special need requests that follow. The proposed rule would
simply establish a process by which States may make a special need
request and provide the Agency with a specific set of evaluation
criteria.
[[Page 16714]]
U.S. agricultural businesses are predominantly small entities. At
all stages of economic activity--production, transportation,
processing, and wholesale and retail sales--agricultural industries are
generally composed of a large number of small firms and a small number
of large firms (with the latter usually generating the major share of
industry revenue). Given this prevailing pattern, any impacts that
special need requests may have on agricultural businesses can be
expected generally to affect a large if not substantial number of small
entities. The number of affected small entities would vary by request,
and would depend on the particular circumstances in the affected States
or political subdivisions.
Reporting, recordkeeping and other compliance requirements. This
proposed rule contains various recordkeeping and reporting
requirements. These requirements are described in this document under
the heading ``Paperwork Reduction Act.''
We expect that costs related to preparing a special need request
would be borne by the public sector, but it is possible that
agricultural industries (and therefore small entities) could incur
indirect costs depending on arrangements for generating the required
information. Also, the Regulatory Flexibility Act's definition of small
entities includes small governmental jurisdictions, that is,
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.'' Thus, it is possible that special need areas could
correspond to or include small governmental jurisdictions.
Of greater impact than costs associated with the preparation of a
request will be the costs and benefits of complying with the additional
restrictions or prohibitions, once a special need request is granted by
the Agency. Types of benefits and costs that may result from a special
need request are identified at the beginning of this document.
Duplicating, overlapping, or conflicting Federal rules. APHIS has
not identified any duplication, overlap, or conflict of the proposed
rule with other Federal rules.
Alternatives that would accomplish the stated objectives and
minimize any significant economic impact on small entities. The
proposed rule would establish a set of criteria for APHIS to use in
evaluating special need requests submitted by special need areas.
Alternatives to the proposed rule would be to either leave the
regulations unchanged, or to require a different set of criteria than
is proposed. Leaving the regulations unchanged would be unsatisfactory
for the public and for APHIS. Granting of special need requests is
currently not efficient due to the lack of an explicit set of criteria
that States and political subdivisions know will be used to evaluate
special need requests. Information contained in a special need request
therefore may be either inadequate or superfluous. The proposed set of
criteria would provide an unambiguous basis for the equitable
evaluation of special need requests.
APHIS considers the proposed set of criteria to be fully sufficient
for evaluation purposes. We invite the public to comment on the
proposed criteria; suggested changes should be supported by an
explanation of why the changes should be considered. We would also
appreciate any comments on expected impacts of special need requests
for small entities, and on how the proposed rule could be modified to
reduce expected costs or burdens for small entities consistent with its
objectives. We reiterate that the proposed rule, in itself, would not
affect small entities, but rather would influence future actions--
granting of special need requests--that would affect small entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. APHIS-
2005-0103. Please send a copy of your comments to: (1) Docket No.
APHIS-2005-0103, Regulatory Analysis and Development, PPD, APHIS,
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238,
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is
best assured of having its full effect if OMB receives it within 30
days of publication of this proposed rule.
In this document, we are proposing to amend the domestic quarantine
notices in 7 CFR part 301 by adding a new ``Subpart-Special Need
Requests'' (7 CFR 301.1 through 301.1-3) in which we would set out
procedures for the submission and handling of special need requests.
The request would have to contain specific information substantiating
the request, including data showing the absence or distribution of the
biological control organism, noxious weed, or plant pest; a risk
analysis or other scientific data showing that it could enter the State
or political subdivision and become established; a description of its
potential to cause environmental or economic harm and any factors that
make the area particularly vulnerable to such harm; and information
detailing the proposed additional prohibitions or restrictions. We are
asking OMB to approve the use of these information collection
activities in connection with our efforts to establish a process for
special need requests.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information
[[Page 16715]]
is estimated to average 160 hours per response.
Respondents: State Governments.
Estimated annual number of respondents: 10.
Estimated annual number of responses per respondent: 1.
Estimated annual number of responses: 10.
Estimated total annual burden on respondents: 1,600 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this proposed rule, please contact Mrs. Celeste
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
List of Subjects in 7 CFR 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend 7 CFR part 301 as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 would continue to read as
follows:
Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80,
and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
2. Part 301 would be amended by adding a new ``Subpart--Special
Need Requests,'' Sec. Sec. 301.1 through 301.1-3, to read as follows:
Subpart--Special Need Requests
Sec.
301.1 Purpose and scope.
301.1-1 Definitions.
301.1-2 Criteria for special need requests.
301.1-3 Action on special need requests.
Subpart--Special Need Requests
Sec. 301.1 Purpose and scope.
(a) Under section 436 of the Plant Protection Act (7 U.S.C. 7756),
a State or political subdivision of a State may not impose prohibitions
or restrictions upon the movement in interstate commerce of articles,
means of conveyance, plants, plant products, biological control
organisms, plant pests, or noxious weeds if the Secretary has issued a
regulation or order to prevent the dissemination of the biological
control organism, plant pest, or noxious weed within the United States.
The only exceptions to this are:
(1) If the prohibitions or restrictions issued by the State or
political subdivision of a State are consistent with and do not exceed
the regulations or orders issued by the Secretary, or
(2) If the State or political subdivision of a State demonstrates
to the Secretary and the Secretary finds that there is a special need
for additional prohibitions or restrictions based on sound scientific
data or a thorough risk assessment.
(b) The regulations in this subpart provide for the submission and
consideration of special need requests when a State or a political
subdivision of a State seeks to impose prohibitions or restrictions on
the movement in interstate commerce of articles, means of conveyance,
plants, plant products, biological control organisms, plant pests, or
noxious weeds that are in addition to the prohibitions or restrictions
imposed by this part or by a Federal Order.
Sec. 301.1-1 Definitions.
The following definitions apply in this subpart:
Administrator. The Administrator, Animal and Plant Health
Inspection Service (APHIS), or any person authorized to act for the
Administrator.
Animal and Plant Health Inspection Service (APHIS). The Animal and
Plant Health Inspection Service of the United States Department of
Agriculture.
Biological control organism. Any enemy, antagonist, or competitor
used to control a plant pest or noxious weed.
Interstate commerce. Trade, traffic, or other commerce:
(1) From one State into or through any other State; or
(2) Within the District of Columbia, Guam, the Virgin Islands of
the United States, or any other territory or possession of the United
States.
Move (moved, movement). Shipped, offered to a common carrier for
shipment, received for transportation or transported by a common
carrier, or carried, transported, moved or allowed to be moved.
Noxious weed. Any plant or plant product that can directly or
indirectly injure or cause damage to crops (including nursery stock or
plant products), livestock, poultry, or other interests of agriculture,
irrigation, navigation, the natural resources of the United States, the
public health or the environment.
Plant pest. Any living stage of any insects, mites, nematodes,
slugs, snails, protozoa, or other invertebrate animals, bacteria,
fungi, other parasitic plants or reproductive parts thereof, viruses,
or any organisms similar to or allied with any of the foregoing, or any
infectious substances which can directly or indirectly injure or cause
disease or damage in any plants or parts thereof or any processed,
manufactured, or other products of plants.
State. The District of Columbia, Puerto Rico, the Northern Mariana
Islands, or any State, territory, or possession of the United States.
Sec. 301.1-2 Criteria for special need requests.
(a) A special need request, as described in Sec. 301.1, may be
generated by a State or a political subdivision of a State. If the
request is generated by a political subdivision of a State, the request
must be submitted to APHIS through the State. All special need requests
must be signed by the executive official or a plant protection official
of the State and must contain the following:
(1) Data drawn from a scientifically sound detection survey,
showing that the biological control organism, noxious weed, or plant
pest of concern does not exist in the State or political subdivision
or, if already present in the State or political subdivision, the
distribution of the biological control organism, noxious weed, or plant
pest of concern;
(2) If the biological control organism, noxious weed, or plant pest
is not present in the State or political subdivision, a risk analysis
or other scientific data showing that the biological control organism,
noxious weed, or plant pest could enter the State or political
subdivision and become established;
(3) Specific information showing that, if introduced into or
allowed to spread within the State or political subdivision, the
biological control organism, noxious weed, or plant pest would harm or
injure the environment and/or cause economic harm to industries in the
State or political subdivision. The request should contain detailed
information about what harm or injury would result from the
introduction or dissemination of the biological control organism,
[[Page 16716]]
noxious weed, or plant pest in the State or political subdivision;
(4) Specific information showing that the State or political
subdivision has characteristics that make it particularly vulnerable to
the biological control organism, noxious weed, or plant pest, such as
unique plants, diversity of flora, historical concerns, or any other
special basis for the request for additional restrictions or
prohibitions; and
(5) Information detailing the proposed additional prohibitions or
restrictions and scientific data demonstrating that the proposed
additional prohibitions or restrictions are necessary and adequate, and
that there is no less drastic action that is feasible and that would be
adequate, to prevent the introduction or spread of the biological
control organism, noxious weed, or plant pest in the State or political
subdivision.
(b) All special need requests must be submitted to [Address to be
added in final rule].
Sec. 301.1-3 Action on special need requests.
(a) Upon receipt of a complete special need request submitted in
accordance with Sec. 301.1-2, APHIS will publish a notice in the
Federal Register to inform the public of the special need request and
to make the request and its supporting information available for review
and comment for at least 60 days.
(b) Following the close of the comment period, APHIS will publish
another notice announcing the Administrator's decision to either grant
or deny the special need request. The Administrator's determination
will be based upon the evaluation of the information submitted by the
State or political subdivision of a State in support of its request and
would take into account any comments received.
(1) If the Administrator grants the special need request, the State
or political subdivision of a State will be authorized to impose only
the specific prohibitions or restrictions identified in the request and
approved by APHIS. APHIS will coordinate with the State, or with the
State on behalf of the political subdivision of the State, to ensure
that the additional prohibitions or restrictions are in accord with the
special need exception granted by the Administrator.
(2) If the Administrator denies the special need request, the State
or political subdivision of a State will be notified in writing of the
reason for the denial and may submit any additional information the
State or political subdivision of a State may have in order to request
a reconsideration.
(c) If the Administrator determines that there is a need for the
withdrawal of a special need exception, the reasons for the withdrawal
would be communicated to the State or to the political subdivision of
the State and APHIS will publish a notice in the Federal Register to
inform the public of the withdrawal of the special need exception and
to make the information supporting the withdrawal available for review
and comment for at least 60 days. Reasons for withdrawal of approval of
a special need exception may include, but are not limited to, the
availability of new scientific data or changes in APHIS regulations.
Following the close of the comment period, APHIS will publish another
notice announcing the Administrator's decision to either withdraw or
uphold the special need exception. The Administrator's determination
will be based upon the evaluation of the information submitted in
support of the withdrawal and would take into account any comments
received.
Done in Washington, DC, this 29th day of March 2006.
Jeremy Stump,
Acting Under Secretary for Marketing and Regulatory Programs.
[FR Doc. E6-4840 Filed 4-3-06; 8:45 am]
BILLING CODE 3410-34-P