Comment from Harry R Fulton, Mississippi Department of Agriculture and Commerce, Bureau of Plant Industry

Comments on Docket No. APHIS-2005-0103, Special Need Requests Under the Plant Protection Act. It is imperative that the regulation allow for an expedient review and implementation of an exemption request if it is to be useful. Of significant importance is a reasonable deadline for action by APHIS on a petition. If an applicant goes to the trouble of asking for an exemption it would be in an emergency situation to prevent the introduction and/or spread of a very serious pest into or within the state. With this in mind, the 60 day comment period as stated in the proposed regulation, followed by a delay in the decision notice for several days or weeks would create a long waiting period before the state could even proceed with its administrative procedures to impose a regulation at the state level. In Mississippi it takes a minimum of 60 days to get a regulation into effect, unless an emergency is declared under which the Commissioner of Agriculture and Commerce can adopt an emergency rule to be effective for 90 days until a final rule can become effective. With the above in consideration, if a state survey for the pest in question must be done upfront prior to submittal of a petition, taking several additional weeks or months, at least a six month delay could result before the state regulatory officials can even start a regulatory program. By then, assuming that federal orders or regulations are not suitable to protect the petitioning state (the basis for the petition), the pest could have been introduced and extensive damage being done, even to the point that eradication and control are impossible. Therefore, it is imperative that the regulation allow for an expedient review and implementation of an exemption request. Another reason for expeditious action on both APHIS?s and the state?s part, is the need to acquire emergency funding. Once APHIS approves a request, the state must proceed with seeking emergency funding to pay for implementing the additional restrictions, which would likely result in further delays. It is doubtful a state would seek funding while not knowing what APHIS?s decision will be. With that in mind, at the time of submittal it would be nice if the regulation allowed the petitioning party to petition for a grant to cover the cost of their in-state program. The decision making process utilized by APHIS/PPQ must not be too subjective or allow for an opinionated decision. Scientific data submitted and the review protocol utilized by APHIS must allow for a subjective or politically pointed decision. A check-list type scientifically based protocol should be included in Section 301.1-3 of the regulation to insure a logical and scientific decision. Otherwise, legal challenges in court could result, leaving the decision in the hands of a judge. Section 301.1-2 mentions terms like ?scientific data?, ?risk analysis?, and ?specific and detailed information?. Being very generic in nature and leaving the decision up to the applicant as to what information to submit could result in a subjective decision by APHIS. Whether or not the data is applicable, the risk analysis is adequate, the information is adequate or if the whole petition is fact is justified would in such a situation be subjective. With the above in mind, the regulation should identify: (1) what type of scientific data (research papers, letters of support from industry, renown researchers and experts, etc.) is needed, (2) what type of risk analysis (computer models, charts, etc,) and (3) a more detailed list of what type of information is needed, keeping in mind what type of pest is involved. Without such, the petition response from APHIS could easily be a generic type response, ?We (APHIS) regret to inform you that your petition is denied because it does not contain adequate scientific data and information to warrant approval?. It would be ideal if the regulation or an official document outlined who in APHIS will review the petition so there is little doubt as to who made the decision to approve or deny it. A flow chart with deadlines at each stage of review would be helpful. Thank you for the opportunity to make comments. Harry Fulton, State Entomologist and SPRO in Mississippi