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J. L. HUDSON, SEEDSMAN, BOX 337, LA HONDA, CALIFORNIA 94020-0337 USA


"All taxa of plants for planting that are not currently being imported in significant amounts would then be excluded pending risk evaluation and approval."

(page 71741 of the Federal Register: December 10, 2004 (Volume 69, Number 237)

If you value being able to grow unusual plants, you must make yourself heard.

Thanks to all of you who sent comments to the USDA objecting to Docket No. 03-069-1, and helped get the word out. I think we made a real impact this time, thanks to you. We will make this sort of regulatory and legislative alert a permanent part of our service. Due to time constraints, we intend to stay focused on regulations and laws that affect the free exchange of seeds and plants. We will be closely watching the feds, but please help keep us informed of state or international developments. Thanks again!

This is a very serious situation. The proposal, as outlined by the USDA and phased in over a number of years, will result in the complete lockdown on public access to the world's botanical diversity. The combination of risk assessment for every species (even every cultivar, or every area of origin), and the "clean stock" programs will end forever the ability of individuals and small businesses to easily import seeds of the majority of plant species. This is the "White List" we have been warning about for the past decade. The restrictions that will be imposed are so serious, and so expensive to comply with, that it will place the biological diversity of the planet into corporate hands.

If you do nothing else this year, please comment! You have until April 11th.

To send your comments to the USDA:

"DATES: We will consider all comments that we receive on or before March 10, 2005.

ADDRESSES: You may submit comments by any of the following methods:

EDOCKET: Go to http://www.epa.gov/feddocket to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once you have entered EDOCKET, click on the "View Open APHIS Dockets'' link to locate this document.

Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 03-069-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-069-1.

E-mail: Address your comment to regulations@aphis.usda.gov. Your comment must be contained in the body of your message; do not send attached files. Please include your name and address in your message and "Docket No. 03-069-1'' on the subject line.

Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this docket and submitting comments. You may view APHIS documents published in the Federal Register and related information, including the names of groups and individuals who have commented on APHIS dockets, on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html."

Please review the information below, and send your comments to the USDA. For the full text of the proposal, with significant portions highlighted in red, click here. I strongly recommend that you review the red-highlighted portions of the complete proposal on that page.

To read my comments: Comments

I recommend that you state your opposition to the entire proposal, opposition to risk assessment in particular, and opposition to both "options" for risk assessment (although the "second option" is less harmful), and that no species should be added to an "excluded pending risk evaluation and approval" category in the absence of genuine positive evidence indicating real economic harm. A "guilty until proven innocent" policy is completely unacceptable.

The USDA proposal states:

"Under the current regulations, all plants for planting are allowed to enter the United States if they are accompanied by a phytosanitary certificate and if they are inspected and found to be free of plant pests, unless their importation is specifically prohibited or further restricted by the regulations. We are considering several possible changes to this approach, including establishing a category in the regulations for plants for planting that would be excluded from importation pending risk evaluation and approval."

The new regulations will

"...restrict, among other things, the importation of living plants, plant parts, seeds, and plant cuttings for or capable of propagation.", and "Living plants and parts thereof, including seeds and germplasm, intended to remain planted, to be planted, or to be replanted to ensure their subsequent growth, reproduction or propagation.''

This means ALL living plant parts.

They consider the fact that you can import new plants to be dangerous and alarming:

"Everything is admissible unless specifically listed as restricted or prohibited. This assumes there is no risk associated with the unknown, an alarming assumption given the resources at stake and the quality of information available.'' It can be assumed that some taxa of plants for planting that are presently being imported pose risks of introducing quarantine pests that are currently unknown to us; as the Safeguarding Report states, "new species of plant that have not been subjected to risk assessment can enter channels of trade with no regulation. Since these are not listed, they are by default admissible and subject to the least stringent protocol regardless of their potential to carry pests or diseases, or become invasive themselves.''

They extend their concern beyond just species:

"We use the word taxon (plural: taxa) in this document to refer to any grouping within botanical nomenclature, such as family, genus, species, or cultivar."

This means entire plant families may be prohibited with the stroke of a pen, and each variety or cultivar within a species may need separate evaluation before being permitted entry. They also propose that each new area from which a species is imported undergo separate evaluation.

"...inspection may not always provide an adequate level of protection against quarantine pests, particularly if the pest is rare, small in size, borne within the plant, an asymptomatic plant pathogen, or not yet recognized and regulated as a quarantine pest.

In other words, a harmless bacterial symbiont, as found in virtually all plants, would not be detected, so could cause harm. Note the term "asymptomatic plant pathogen" - this means a disease that produces no symptoms - if it produces no symptoms, why be concerned? And how can it be called a "disease"?

"...the nursery stock regulations do not require that a PRA [Pest Risk Assessment] 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; most plants for planting are allowed to be imported after visual inspection at a Federal plant inspection station or port of entry."

This is to propose that a full pest risk assessment be done on every species to be imported, and without such PRA, it would be prohibited. (For an example of what is involved in risk assessment, see below.)

"The measures we are considering are: (1) Collecting data on the current importation of taxa of plants for planting; (2) establishing a new category for certain taxa of plants for planting that would be excluded from importation pending risk evaluation and approval; (3) establishing programs to reduce the risk of importation and establishment of quarantine pests; (4) combining existing regulations governing the importation of plants for planting; and (5) reevaluating taxa whose importation is currently prohibited."

This is the so-called "White List" - everything that is not permitted will be prohibited until it passes "risk evaluation". The proposal states that anything that is not currently being imported in "significant quantities" would require risk assessment:

"We are considering two possible options for determining which taxa of plants for planting would be added to this category. In the first option, taxa of plants for planting that are currently being imported in significant amounts and whose importation is subject to general restrictions in the regulations would, in most cases, be presumed to be safe and would not be excluded from importation pending risk evaluation and approval."

In other words, under the "first proposal", only common species currently being imported in large quantities would be exempt from risk assessment.

"In the second option that we are considering, we would exclude taxa of plants for planting from importation pending risk evaluation and approval when evidence other than a PRA was available that indicated either that the importation of the plant could introduce a quarantine pest into the United States or that the plant itself could be a quarantine pest or a noxious weed."

The second option is preferable to the first, but only in the same way as one broken leg is preferable to two.

The first option will completely shut down the importation of seeds and plants by individuals. In other parts of the proposal, they detail a system under which there would be a system of certified "clean stock" producers, both in the exporting country and here in the US. Only certified "clean stock" exporters would be allowed to ship to the US, and only certified "clean stock" nurseries in the US would be allowed to receive shipments. This will end all importation of wild-collected seed, which is very important for the preservation of genetic diversity within a species. This will also prevent certified organic growers to import or export, as "clean stock" requirements can only be met with heavy pesticide use.

"While a taxon is excluded from importation pending risk evaluation and approval, we would allow it to be imported into the United States if the producer that wishes to export the taxon to the United States is participating in an approved clean stock program. We would additionally allow the importation of small quantities of such a taxon under the conditions of a best management practices program so that it could be tested within the United States. We would establish a permit system to allow and control such importation."

In other words, new importations will be restricted to those large-scale corporations with the resources to comply with an entirely new bureaucracy, new permits, new inspections, new record-keeping.

To give you an idea of what is involved in risk assessment, here is some of the information they intend to require, in addition to "invasiveness" screening (from the previous round of rule-changes - Docket No. 02-132-1):

"Description of all pests and diseases associated with the commodity proposed for exportation to the United States:

Scientific name (including genus, species, and author names) and taxonomic classification of arthropods, fungi, bacteria, nematodes, virus, viroids, mollusks, phytoplasmas, spiroplasmas, etc., attacking the crop,

Plant part attacked by each pest, pest life stages associated with each plant part attacked, and location of pest (in, on, or with commodity), and References."

"Additional information about the commodity:

Common name(s) in English and in the language(s) of the exporting country, Cultivar, variety, or group description of the commodity, Stage of maturity at which crop is harvested and method of harvest, Indication of whether crop is grown from certified seed or nursery stock, if applicable, If grown from certified seed or stock, indication of the origin of the stock or seed (country, State), and Color photographs of plant, plant part, or plant product itself.

Information about the area where the commodity is grown:

Unique characteristics of the production area in terms of pests or diseases,

Maps of the production regions, pest free areas, etc.,

Length of time commodity has been grown in production area,

Status of growth of production area (i.e., acreage expanding or stable), and

Physical and climatological description of the growing area.

Information about post-harvest transit and processing:

Complete description of the post-harvest processing methods used, and

Description of the movement of the commodity from field to processing to exporting port (e.g., method of conveyance, shipping containers, transit routes, especially through different pest risk areas).

Shipping methods and volume of exports:

Photographs of the boxes and containers used to transport the commodity, and

Identification of port(s) of export and import and expected months (seasons) of shipment, including intermediate ports-of-call and time at intermediate ports-of-call, if applicable.

Additional description of all pests and diseases associated with the commodity to be imported:

Common name(s) of the pest in English or local language(s),

Geographic distribution of the pest in the country, if a quarantine pest and follows the pathway,

Period of attack (e.g., attacks young fruit beginning immediately after blooming) and records of pest incidence (e.g., percentage of infested plants or infested fruit) over time (e.g., during the different phenological stages of the crops and/or times of the year),

Economic losses associated with pests of concern in the country, Pest biology or disease etiology or epidemiology, and Photocopies of literature cited in support of the information above.

Current strategies for risk mitigation or management:

Description of pre-harvest pest management practices (including target pests, treatments [e.g., pesticides], or other control methods) as well as evidence of efficacy of pest management treatments and other control methods,

Efficacy of post-harvest processing treatments in pest control,

Culling percentage and efficacy of culling in removing pests from the commodity, and

Description of quality assurance activities, efficacy and efficiency of monitoring implementation.

Existing documentation:

Relevant pest risk analyses, environmental assessment(s), biological assessment(s), and economic information and analyses."

Hmmm... "Photographs of the boxes and containers used to transport the commodity" Does this make any sense at all?

Their estimate of how much time it would take to assemble and report this information:

"Estimate of burden: Public reporting burden for this collection of information is estimated to average 2 hours per response. Respondents: U.S. importers, foreign producers and regulatory officials."

This shows a serious disconnect from reality.

Now lots of the above regulation might actually make some sense - if applied to shiploads of raw sawlogs, or thousand-ton imports of agricultural commodities. But certainly not to any imports of less than a couple of hundred tons, or under a million dollars in value, much less small imports of nursery stock. These should be inspected by the USDA on arrival (at no charge - isn't that what we pay taxes for?).

To send your comments to the USDA:

"DATES: We will consider all comments that we receive on or before March 10, 2005.

ADDRESSES: You may submit comments by any of the following methods:

EDOCKET: Go to http://www.epa.gov/feddocket to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once you have entered EDOCKET, click on the "View Open APHIS Dockets'' link to locate this document.

Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. 03-069-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 03-069-1.

E-mail: Address your comment to regulations@aphis.usda.gov. Your comment must be contained in the body of your message; do not send attached files. Please include your name and address in your message and "Docket No. 03-069-1'' on the subject line.

Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this docket and submitting comments. You may view APHIS documents published in the Federal Register and related information, including the names of groups and individuals who have commented on APHIS dockets, on the Internet at http://www.aphis.usda.gov/ppd/rad/webrepor.html."


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