[Federal Register Volume 60, Number 9 (Friday, January 13, 1995)]
[Rules and Regulations]
[Pages 3067-3078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-935]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 89-154-2]
RIN 0579-AA21
Importation of Plants Established in Growing Media
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending ``Subpart--Nursery Stock, Plants, Roots,
Bulbs, Seeds, and Other Plant Products'' to allow the importation of
four additional genera of plants established in growing media. These
genera are Alstroemeria, Ananas, Anthurium, and Nidularium. We are
deferring final action on importation of Rhododendron pending
consultation under the Endangered Species Act on the potential impacts
of importing Rhododendron established in growing media. We are also
adopting the pest risk evaluation standards we proposed for evaluating
pest risks associated with importing plants established in growing
media. This final rule will affect persons interested in importing
Alstroemeria, Ananas, Anthurium, and Nidularium, and domestic growers
of these genera.
EFFECTIVE DATE: February 13, 1995.
FOR FURTHER INFORMATION CONTACT: Peter Grosser or Frank Cooper, Senior
Operations Officers, Port Operations, [[Page 3068]] Plant Protection
and Quarantine, APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738. The
telephone number for the agency contacts will change when agency
offices in Hyattsville, MD, move to Riverdale, MD, during January.
Telephone: (301) 436-8295 (Hyattsville); (301) 734-8295 (Riverdale).
SUPPLEMENTARY INFORMATION:
Background
The Plant Quarantine Act (7 U.S.C. 151 et seq.) and the Federal
Plant Pest Act (7 U.S.C. 150aa et seq.) authorize us to prohibit or
restrict the importation into the United States of any plants, roots,
bulbs, seeds, or other plant products in order to prevent the
introduction into the United States of plant pests.
Regulations promulgated under this authority, among others, include
7 CFR 319.37 through 319.37-14, ``Subpart--Nursery Stock, Plants,
Roots, Bulbs, Seeds, and Other Plant Products'' (the regulations).
These regulations govern the importation of living plants, plant parts,
and seeds for or capable of propagation, and related articles. Other
sections of part 319 deal with articles such as cut flowers, or fruits
and vegetables intended for consumption.
The regulations restrict or prohibit the importation of most
nursery stock, plants, roots, bulbs, seeds, and other plant products.
These articles are classified as either ``prohibited articles'' or
``restricted articles.''
A prohibited article is an article that the Deputy Administrator
for Plant Protection and Quarantine (PPQ), Animal and Plant Health
Inspection Service (APHIS), has determined cannot feasibly be
inspected, treated, or handled to prevent it from introducing plant
pests new to or not widely prevalent or distributed within and
throughout the United States, if imported into the United States.
Prohibited articles may not be imported into the United States, unless
imported by the United States Department of Agriculture (USDA) for
experimental or scientific purposes under specified safeguards.
A restricted article is an article that the Deputy Administrator
for PPQ has determined can be inspected, treated, or handled to
essentially eliminate the risk of its spreading plant pests if imported
into the United States. Restricted articles may be imported into the
United States if they are imported in compliance with restrictions that
may include permit and phytosanitary certificate requirements,
inspection, treatment, or postentry quarantine.
Section 319.37-8, ``Growing Media,'' allows importation of certain
restricted articles established in growing media (potted plants), if
the plants were potted in an approved growing medium and were grown in
a greenhouse in accordance with safeguard conditions specified in the
regulations. Potted plants that currently may be imported under the
regulations include Polypodiophyta (ferns), African violet, gloxinia,
begonia, peperomia, and hyacinth.
Proposed Rule
On September 7, 1993, APHIS published in the Federal Register (58
FR 47074-47084, Docket No. 89-154-1) a proposal to amend Sec. 319.37-8
to allow the importation of plants in growing media (potted plants) of
the following additional genera: Alstroemeria, Ananas, Anthurium,
Nidularium, and Rhododendron. We solicited comments concerning our
proposal for 60 days ending December 6, 1993. During this comment
period, we also received comments at a public hearing which was
announced in the proposed rule and which was held in Washington, DC, on
October 26, 1993.
We received 122 comments by the close of the comment period. They
were from embassies of foreign governments, domestic grower and nursery
associations, State plant protection agencies, environmental interest
organizations, and foreign nurseries and greenhouses. The majority of
these commenters opposed adoption of the proposal to allow the
importation of five additional genera of plants in growing media.
Several commenters suggested changes to pest risk assessment
procedures, without specifically opposing adoption of the proposed pest
risk evaluation standards for plants in growing media. No commenters
opposed the proposal to approve several new growing media, although
several commenters expressed the opinion that plant pests could grow in
the already approved growing media. All of the comments are discussed
below, under ``Comments and Responses.''
After carefully evaluating the comments on the proposed rule, APHIS
has made the following decisions on the proposal:
1. We will adopt the proposed pest risk evaluation standards and
the proposed requirements for specific inspection, handling, and
growing conditions for all plants in growing media that are allowed to
be imported under the regulations. We believe these standards and
requirements clearly provide better pest protection than the
requirements now contained in Sec. 319.37-8. Therefore, we are revising
the regulations to adopt the proposed standards and requirements, with
several slight modifications made in response to comments. These
modifications are discussed below, under ``Comments and Responses.''
2. In addition to the six kinds of plants in growing media
previously allowed importation by the regulations (Polypodiophyta,
African violets, gloxinia, begonia, peperomia, and hyacinth), we will
allow the importation of the following genera of plants in growing
media: Alstroemeria, Ananas, Anthurium, and Nidularium. We believe that
these plants in growing media may be safely imported without
significant risk of introducing into the United States any tree, plant
or fruit disease, or any injurious insect, new to or not widely
prevalent or distributed within and throughout the United States.
Comments objecting to the importation of these genera in growing media
did not provide sufficient evidence to convince us that importing these
genera would present a significant risk of introducing and spreading
dangerous plant pests.
3. We will defer action on the provisions of the proposed rule that
apply to Rhododendron. Commenters identified specific issues under the
Endangered Species Act regarding the proposed importation of
Rhododendron in growing media. For instance, some commenters noted that
an endangered Rhododendron species in the United States might be
damaged by alien pests introduced or imported on Rhododendron. We have
determined that in compliance with Section 7 of the Endangered Species
Act (16 U.S.C. 1537), consultation is necessary between APHIS and the
Fish and Wildlife Service before we take final action on our proposal
to allow the importation of Rhododendron in growing media. This
consultation is necessary due to the presence in the United States of
species of Rhododendron that are listed, and are proposed for listing,
as endangered or threatened under the Endangered Species Act.
After completion of the Endangered Species Act consultation, we
will proceed with rulemaking to either finalize or withdraw the
proposed changes concerning importation of Rhododendron.
Comments and Responses
The comments have been summarized and grouped below according to
the comment topics. Our responses to each topic follow the summary.
[[Page 3069]]
Comments that specifically addressed only Rhododendron issues are
not discussed in this document. They will be addressed in any future
rulemaking on the proposed Rhododendron provisions.
The Acceptable Level of Risk for Importing Plants in Growing Media
Several commenters argued that APHIS is subject to strict statutory
standards that would preclude regulations allowing importation of
articles if there is any plant pest risk associated with the
importation. One commenter stated that ``[the Plant Quarantine Act on
its face indicates that the Secretary of Agriculture and his delegate,
APHIS, should err on the side of caution: `whenever' importation of
plants `may result' in the introduction and spread of injurious plant
pests, then importations `shall' be restricted.'' This commenter cited
Sec. 159 of the Plant Quarantine Act (7 U.S.C. 151 et seq.), which
states:
Whenever the Secretary of Agriculture shall determine that the
unrestricted importation of any plants, fruits, vegetables, roots,
bulbs, seeds, or other plant products not included by the term
``nursery stock'' as defined in section 152 of this title may result
in the entry into the United States or any of its Territories or
Districts of injurious plant diseases or insect pests, he shall
promulgate his determination, specifying the class of plants and
plant products the importation of which shall be restricted and the
country and locality where they are grown, and thereafter, and until
such promulgation is withdrawn, such plants and plant products
imported or offered for import into the United States or any of its
Territories or Districts shall be subject to all the provisions of
sections 154 and 156 to 158 of this title.
Response: This section clearly states that it is the responsibility
of the Secretary to determine when unrestricted importations ``may
result'' in the introduction and spread of injurious plant pests. If
such a determination is made, the Secretary is not required to prohibit
the importation. He or she may restrict it; the appropriate restriction
may involve a prohibition, or may involve importation under conditions
to control pest risk.
Therefore, the Secretary is not obliged to prohibit the importation
of the genera in the proposal `whenever' importation of plants `may
result' in the introduction and spread of injurious plant pests.
Instead, importation of the articles is subject to the standards of
Sec. 154, which give the Secretary a great deal of discretion in
deciding when and what types of import restrictions are necessary.
Section 154 generally requires that nursery stock imports must be
authorized by a permit, accompanied by a certificate, and imported
``under such conditions and regulations as the said Secretary of
Agriculture may prescribe.'' The Secretary is also authorized ``to
limit entry of nursery stock from foreign countries under such rules
and regulations as he may deem necessary'' (emphasis added).
The proposed rule supported the goal of preventing the introduction
and establishment of dangerous plant pests by proposing methods the
Secretary deems effective in supporting this goal. Therefore, we
believe the proposed action is consistent with the Plant Quarantine Act
standards.
Adequacy of Port-of-Arrival Inspection To Mitigate Pest Risk
Many commenters stated that inspection at the port of arrival is
not an effective means for preventing the entry of pests. Some cited
instances where shipments that passed such an inspection were later
found to be infested with pests. Other commenters noted that many
diseases and small pests cannot be effectively identified through
visual inspection. Some questioned whether APHIS had sufficient
resources to continuously implement effective inspection programs at
all ports of entry.
Response: Current conditions for any imported article allow for
inspection at the port of first arrival; however, because any pests
that might be in the media cannot be readily observed, we have imposed
conditions concerning origin, testing, growth, inspection and storage
of the plants that should essentially eliminate the risk of exotic
pests being present in the media. This scheme to ensure freedom of the
media from pests has been proven over nearly 20 years of importations.
Reliance on Foreign Plant Protection Services
Several commenters stated that the proposal relies heavily on
cooperation by the plant protection services of foreign countries to
inspect growing facilities and ensure that articles to be exported to
the United States are grown in compliance with regulatory standards.
They maintained that these foreign plant protection services may not
effectively fulfill their role in enforcing the regulations, and that
APHIS does not have the authority or resources to ensure that they do
so.
Response: Each foreign grower is required to sign an agreement with
the plant protection organization of the foreign country, agreeing to
abide by the conditions of our regulations. In addition, each exporting
country must sign an agreement with APHIS agreeing to implement the
conditions of the regulations. The producing greenhouses and the
growing plants must be made available for inspection by inspectors of
APHIS and the foreign plant protection organization. No shipment will
be allowed entry into the United States unless the accompanying
phytosanitary certificate is endorsed by an APHIS inspector, either in
the country of export or the port of entry, as required by the
regulation. This endorsement is based on monitoring inspections that
show that the plants were grown under the requirements of the
regulations. Also, if pests are found or other violations noted,
individual shippers or greenhouse growers can be suspended from
preclearance. APHIS has a record of prohibiting the importation of, or
requiring treatments for, various commodities that were repeatedly
found infested or infected with exotic plant pests. However, no such
action has been taken with plants in growing media shipped under
Sec. 319.37-8(e) or -8(f) because no exotic pests have ever been found
with such shipments.
Comments in Favor of the Proposal
Several commenters stressed that the APHIS proposal does not relax
the level of protection against pests associated with plants imported
in growing media, and that the proposal essentially would allow the
entry in media of genera that are already allowed entry if bare-rooted.
These commenters also stated that the proposed media have proven to be
of no or very low risk, and that compliance agreements between foreign
growers and their governments and between foreign governments and APHIS
provide all necessary guarantees and are enforceable.
Supportive commenters also believe that adequate inspection will be
available since only a few growers will participate in the program, and
further note that APHIS has long experience in inspecting plants abroad
and at ports of arrival. They also believe the proposal would not
result in a magnitude of imports that would overwhelm enforcement and
inspection resources since observing APHIS requirements would be very
expensive.
Choosing Which Genera To Import
Several commenters stated that the five genera in the proposal were
not chosen because they represent genera which pose the least risk if
imported, but because they are the most economically attractive genera
for importation.
Response: Over the last 20 years, approximately 60 genera of plants
in media have been requested for [[Page 3070]] importation into the
United States by foreign governments. These are, of course, the genera
the exporting countries especially desire to ship to the United States.
It is APHIS policy to respond to such requests, regardless of their
origin. We intend to consider all of the requested genera. However, as
explained in the advance notice of proposed rulemaking published
October 7, 1991 (56 FR 50523-50524, Docket No. 91-036), and in the
proposed rule published September 7, 1993 (58 FR 47074-47084, Docket
No. 89-154-1), we selected the five genera in the proposal for study
first because they represent a diversity of horticultural and botanical
types, and because they are among the first plants requested by foreign
governments to be imported in growing media. These five genera were
proposed for addition to the list of approved plants for importation in
growing media because we found that they could be safely imported under
specified safeguards without introducing exotic plant pests harmful to
U.S. agriculture.
In developing the list of pests to be studied for the five genera,
we listed all pests reported on these hosts, whether or not we were
familiar with their potential risk at that time. The list was developed
without knowing the potential risk of each and every organism. All
pests on the list were subjected to the pest risk analysis to determine
which pests had a potential to be high risk based on the pest risk
assessment standards. The high risk pests were subjected to detailed
study, as described in the proposed rule.
Concern About Foreign Growers Observing Conditions
Several commenters stated that the proposed growing restrictions
will not be feasible for the foreign growers to observe, and they will,
therefore, not observe them. These commenters also said that European
growers cannot grow azaleas in the method prescribed by APHIS; instead,
based on current practices, they would build a small greenhouse that
meets the requirements for export plants, and then run tremendous
numbers of plants through it illegally.
Response: If restrictions are not feasible for any particular
foreign growers, those foreign growers will not be approved to ship
plants in media to the United States.
Other commenters said that not all European growers will be careful
in observing requirements, so some degree of unwanted pest
contamination is inevitable for plants in growing media imported into
the United States.
Response: No human enterprise is without risk. However, we believe
based on our research, and experience with similar potted plants, that
the proposed four genera we are approving can be imported into the
United States without significant risk, provided the required
conditions are observed.
Regulations Should Include Consequences (Penalties) for Non-Compliance
Some commenters believed that the risk of crop devastation or
imposed quarantine destruction is a burden placed on U.S. importers and
ultimately on the American taxpayer. They suggested that the
regulations should spell out consequences and penalties for all
domestic and foreign parties who fail to comply with regulatory
requirements.
Response: The consequences for non-compliance are elimination from
the program for individual growers, shippers, or foreign countries.
(See explanation under ``Concern about Foreign Growers Observing
Conditions'' above.)
Several commenters stated that importers should be held financially
responsible for the risks of importation.
Response: USDA has no authority to hold importers responsible for
risks of importation; however, individual shipments will be refused
entry unless the phytosanitary certificate required to accompany the
shipment is endorsed by a Plant Protection and Quarantine inspector, as
required by the regulation. This endorsement is based on monitoring
inspections that show that the plants were grown under the requirements
of the regulations. Also, if pests are found or other violations noted,
individual shippers or greenhouse growers can be suspended from
preclearance.
Two commenters suggested that the regulations should suspend a
producer from preclearance if a violation is found until the situation
is corrected, and suspend the producer for at least 1 year if
subsequent violations are found.
Response: Because the required agreements allow cancellation by
either party, APHIS has authority to suspend violators from
preclearance. We intend to employ this cancellation authority in
enforcement. We do not believe it is necessary to set specific time
periods for the duration of a cancellation or suspension in order to
use the tool effectively.
Limits on Methods To Control Pests Introduced Into the United States
Several commenters stated that the U.S. Environmental Protection
Agency (EPA) limits on use of some pesticides in the United States
would make it impossible to use the most effective chemical controls to
combat pests that could be introduced with the regulated articles.
Response: If safeguards are observed, introductions of exotic pests
with plants in media are extremely unlikely. No exotic pests have been
detected in nearly 20 years of importations of plants in media from
Europe and Israel. However, should new pests be introduced, their
susceptibility to eradication or control will depend on the nature of
the pest and the availability of control measures. It does not follow
that because EPA action has resulted in loss of some chemical controls,
that any new introduced pests could not be adequately controlled,
chemically or otherwise.
Several commenters were concerned that pests introduced by the
regulated articles will require more domestic usage of allowed
pesticides, which could pose a health risk.
Response: We are concerned about possible health risks from the
application of chemicals for quarantine purposes. However, we have no
reason to believe that chemical controls applied in accordance with
label requirements would present a health risk. The question of health
risks from application of chemical pesticides is within the purview of
the EPA and the Food and Drug Administration.
Several commenters stated that we are potentially defenseless
against pests that may have begun to develop genetic resistance to the
more powerful controls that may be legal in exporting countries.
Response: We would be glad to study evidence that pests in foreign
countries have developed genetic resistance to pesticides not legal for
use in the United States. However, if such resistance does occur, it
does not mean that the pests would be resistant to pesticides that are
legal for use in this country.
Growing Media Concerns
Several commenters stated that pests and diseases can grow in the
growing media currently allowed for the regulated articles.
Response: We have no evidence that unused approved media is
infested or infected with exotic plant pests. If prescribed safeguards
are observed, such media used for approved plants will not become
infested with exotic plant pests.
One commenter suggested that the definition of ``media'' should not
be changed from ``sterile'' to ``approved.''
Response: There is no current definition of ``media'' as
``sterile'' in this regulation. We made no proposal to
[[Page 3071]] change the definition of ``media''. Therefore this
comment is not germane to the proposal.
One commenter suggested that Dutch and Israeli imports should be
imported only in absolutely sterile media. This commenter stated that
all kinds of weeds and diseases are imported into The Netherlands and
handled there in ways that circumvent inspection or quarantine
requirements theoretically designed to control the pests. The commenter
also stated that sterile media is necessary for plants from Israel
because desert weeds and diseases that occur there have not been
identified or are not well known, but present risks.
Response: We cannot respond since we have no evidence to support
these claims, and the commenter did not provide evidence to support his
claim.
Several commenters stated that no plants in media should be allowed
to be imported into the United States.
Response: Certain plants are already enterable in media; we did not
propose to change the entry status of those plants. This commenter did
not explain why no plants in media should be allowed entry.
Anthurium Concerns
Commenters opposed to allowing the importation of Anthurium species
noted that the Anthurium industry in Hawaii has had to deal with
introduction of Xanthomonas campestris pathovar dieffenbachiae with
losses of $8.5 million. They stated that Hawaii is especially liable to
new pest infestations, and that anthuriums are especially susceptible
to new pests. They also stated that the scientific information on pests
of anthuriums is probably not all inclusive because anthuriums have not
been of great economic importance compared to other cut flowers.
Response: The special vulnerability of Hawaii to tropical pests
that do not survive well in most of the United States was considered by
the pest risk analysis for anthuriums. During the analysis, Hawaii,
Puerto Rico, California, and Florida were specifically considered and
recognized as areas that needed special consideration due to their
climate. We understand that the scientific information on pests of
anthuriums, like most plants, is not all inclusive. We must use the
best information available in making our decisions. The safeguards in
the rule are deliberately broad to provide protection against a
diversity of plant pests including those that were not identified.
Several commenters stated that the proposed requirements were not
fully adequate because the APHIS pest risk analysis states that for
some plants, inspection at port of entry would not serve as an adequate
safeguard since symptoms of significant diseases are not present during
the incubation period.
Response: As with other plants in media, the primary safeguards are
those applied before and during growth in the foreign country. These
safeguards are very strict because inspection at port of entry will not
serve as an adequate safeguard for certain pests, either because of
their size, or because symptoms are not present during the incubation
period, or because pests would be hidden by the growing medium.
Several commenters stated that the decision to import the five
genera, especially Rhododendron, seems to go against the findings of
the APHIS committee of researchers who prepared the worksheets and
evaluations of pest risk (the Kahn report, made available through the
proposed rule), which recommended against admitting Rhododendron due to
pathogens in Europe, and raised concerns about other genera.
Response: The function of the Kahn report was not to recommend that
the genera under study be admitted or prohibited, but to identify the
risks that would be associated with their admission. The Kahn report
did identify significant risks that would be associated with
unregulated admission of Rhododendron in growing media, and less
significant risks regarding the other genera. APHIS evaluated those
risks and tailored specific regulatory controls and safeguards to
mitigate the risks in preparing the proposed rule. Since this final
rule does not include importation for Rhododendron, a discussion of the
efficacy of controls and requirements to mitigate risks associated with
importation of Rhododendron will be deferred until such time as we
publish further rulemaking for that genus.
Some commenters stated that there is no reason to import the five
genera, since production of the same genera or easily substitutable
plants in the United States is more than adequate, and new varieties
can be obtained by cuttings or tissue culture.
Response: We have no authority to base a prohibition on the
availability of plants in the United States. Any prohibition or
restriction must be based on pest risk.
Previous Introductions of Serious Pests Into the United States
Several commenters stated that a large number of pests have been
introduced into the United States and have caused significant economic
and environmental harm. They stated that many of these pests were
introduced despite import controls believed to be as effective as the
proposed regulations for plants in growing media. They believe that
available and legal methods of control have proved inadequate to
control most of these pests, and that the proposed regulations would
only speed the introduction of more pests of this type. Examples of
introduced pests cited by these commenters include Egyptian cotton
moth, Asian gypsy moth, Geranium Xanthomonas bacterial blight, fire
ants, Mexican fruit fly, Mediterranean fruit fly, honeybee tracheal
mite, Narcissus bulb nematode, apple ermine moth, Varroa mite, azalea
flower spot, chrysanthemum white rust, sweet potato white fly, Thrips
palmi, lethal yellowing, Ganaderma zonaturum and Apopka weevil,
Melaleuca, brown snails, zebra mussel, European gypsy moth, purple
loosestrife, a Japanese weed (Phylanthese), TSWV virus (spread by
thrips), serpentine leaf miner, Japanese beetles, golden nematode,
black vine weevil, pine shoot beetle, Dutch elm disease, Chestnut
blight, European pine shoot moth, apple maggot, oriental fruit moth,
Caribbean fruit fly, citrus canker, citrus leafminer, black parlatoria
scale, Diaprepes root weevil, stunt of Chrysanthemum, Cylindrocladium
of azalea, Liriomyza trifolii, L. huidobrensis, Spodotera exigua,
Frankliniella occidentalis, and Bemisia tabaci.
Response: The majority of the organisms listed by these commenters
are usually not found associated with plants in growing media of the
genera proposed for importation. In some cases, such as apple maggot,
Frankliniella occidentalis, and others, the pests are indigenous to
North America. Several of the pests named, such as the Egyptian cotton
moth, have not, in fact, become established even temporarily in the
United States. Chestnut blight, European Gypsy Moth, and other
introduced pests that did become established, did so prior to the
establishment of Federal plant quarantines, and their presence does not
support a charge that quarantine regulations are not effective.
Melaleuca is a horticultural introduction only recently considered as a
noxious weed; for many years, our regulatory programs did not attempt
to restrict its importation. The honeybee tracheal mite, azalea flower
spot, and other remaining pests are not likely to be associated with
plants in growing media grown under the conditions in the proposal.
[[Page 3072]]
We believe that the lack of quarantine significant introductions of
any pests in association with the five taxa of plants currently allowed
importation in growing media during the past 20 years is also evidence
that pests are unlikely to be introduced in growing media imported
under the proposed requirements.
If safeguards are observed, no exotic pests should be introduced
with the plants. We expect that APHIS and the foreign plant protection
organization will apply adequate controls to ensure consistent and
correct application of the safeguards.
Examples of Infected or Infested Stock That Has Been Imported
One commenter reported he bought virus-infected geranium stock from
the Canary Islands and Mexico. Another mentioned Fischer Geranium ISA
voluntarily cancelling 80 million geranium cuttings from Mexico because
of a possible virus disease that might infect other ornamentals. A
commenter who imported plant cuttings from Israel said he had them
inspected and released by APHIS but that a follow up inspection found
Egyptian cotton moth, resulting in a $250,000 loss.
A commenter stated he imported nursery stock from The Netherlands
that turned out to be infested with the noxious weed ``keek,'' which
could not be eradicated. Another cited growers who have been shut down
because of imported products infested with Egyptian cotton moth and
white rust of chrysanthemums. Another cited an importation of
Alstroemeria plants from The Netherlands that had tomato spot wilt
virus and were being distributed by a Dutch-American propagator.
A commenter reports that mixed fern species arriving at Apopka were
found with four different taxa of insects, and that undetermined
species of both Aphelenchoides and Helicotylenchus were found in
sterile peat imported from nurseries in The Netherlands.
Another commenter reports that rootstocks from The Netherlands have
been found to be infested with Meloidogyne and Pratylenchus species.
Another commenter notes that the State of Oregon has found serious
plant pests or diseases in imported pre-inspected plant materials.
Response: While these comments document a general background risk
that pests may be introduced into the United States, they do not
provide evidence that the restrictions and safeguards discussed in the
proposal for importing plants in media would fail to prevent
introduction of pests. We continue to believe that the proposed
restrictions and safeguards are effective, for the reasons discussed in
the proposal.
Safeguard Concerns
Several commenters suggest that the frequency and timing of
inspections should be critically examined because pests may build up in
a short time. Plant auctions and resale transactions would have to be
policed to ensure that the plants were grown under qualifying
conditions. These commenters also believe that APHIS must take steps to
assure effective pest exclusion programs at ports of entry, and
guarantee development and maintenance of programs to exclude and/or
control pests.
Several commenters suggested that APHIS should include provisions
to limit numbers of plants imported. They felt limits on plant import
numbers should relate to the known capacity of each exporting country
to grow plants under approved conditions and should take account of the
reasonably expected output for each growing facility.
Response: Allocating resources to enforce regulations is an
important part of any regulatory program, and APHIS intends to devote
the resources required to ensure that inspections, record-keeping, port
of arrival activities and other actions required under the regulations
are maintained at the level required for successful implementation of
this program.
Regarding enforcement and verification of compliance with the
regulations, all growers of plants in media to be shipped to the United
States must keep records of kinds and numbers and time of shipment for
all plants brought into, and shipped from, the greenhouse. These
records must be made available to inspectors of APHIS and of the plant
protection service of the foreign country. These records will also help
ensure that the number of plants imported under the regulations does
not exceed the number that could reasonably be grown in approved
facilities. If more plants are imported than we believe could
reasonably be grown in approved facilities, we will investigate
possible violations.
Unscheduled visits will be made to the approved greenhouses by
inspectors of both APHIS and the plant protection services of the
growing countries. In addition to monitoring the number of plants that
can be shipped, the inspectors will enforce the very strict controls
placed on the greenhouses, including automatic closing doors,
screening, raised benches, etc.
One commenter suggested that the lack of a protocol for detecting
movement of plants from unapproved greenhouses through approved
greenhouses and the lack of a quarantine period in the United States
for imported material allow too great a risk of nondetection of pests.
Response: The record-keeping and inspection requirements for
growers discussed above address the problem of movements from
unapproved greenhouses through approved greenhouses. In response to the
quarantine period comment, APHIS requires postentry quarantine only
when other import requirements cannot ensure the material is free from
dangerous plant pests. The pest risk associated with the genera in
growing media in the proposal can usually be addressed by other means.
APHIS will propose postentry quarantine as a requirement to admit any
plant in growing media when such a requirement is necessary; for
example, the proposal includes postentry quarantine for Ananas and
Nidularium imported into Hawaii.
Adequacy of Requirements for Growing Conditions in the Country of
Origin
Several commenters noted that pests may not be able to pass through
the screens proposed for greenhouses, but other openings will let them
in because greenhouses expand and contract and have small cracks and
broken panes of glass.
Response: In addition to specifying a required screen mesh size,
the proposed regulations also rely on a performance standard for pest
exclusion, which inspectors will enforce. The regulations require that
the articles must be grown in a greenhouse ``in which sanitary
procedures adequate to exclude plant pests and diseases are always
employed'' (Sec. 319.37-8(e)(2)(ii)).
One commenter questioned the proposed requirement that growing
plants may be watered only with rainwater that has been boiled or
pasteurized, with clean well water, or with potable water. Water fit
for human consumption (potable water) may still contain plant pests or
pathogens.
Response: We believe that water that has been contaminated with
organic material to the point that it harbors significant numbers of
plant pests is also likely to harbor human disease pathogens that make
it not potable. It therefore would not be allowed to be used by the
regulations. Similarly, water that has been treated to render it
potable has been exposed to chemicals or treatment conditions that will
destroy human pathogens and plant pests alike.
One commenter asked: What is clean rainwater? Can it be collected
as runoff [[Page 3073]] from buildings, which may be contaminated? This
commenter suggested that all irrigation water should be treated with
ultraviolet irradiation or filtered to eliminate spread of pathogens.
Response: Under the proposed requirement, if rainwater is used it
must be boiled or pasteurized, which would destroy pathogens.
Several commenters suggested that the height requirement for the
raised growing benches is not sufficient to prevent something on the
ground being spread by insects or by water splashing.
Response: The benches are not raised over ``ground,'' but over
concrete or gravel over plastic sheeting. The purpose of any elevation
of the benches is to allow air circulation underneath, to separate the
bench and its plants from the drainage off the bench, and to simplify
cleaning and sanitation. The minimum height specified was necessary to
accomplish these tasks. Some benches may use trickle irrigation for
watering or contain approved growing media watered by a circulatory
system. In either case there would be no splashing. If there were some
splashing, there would be no soil that would serve as a source of
contamination and spread. In addition, the height requirement for
potted plants has been in effect for six different kinds of plants for
about 20 years. No exotic pests have been found with shipments of these
plants.
Several commenters stated that pesticides in the growing facilities
will keep infestations at a low level making visual inspection useless;
pesticide use should be prohibited to avoid this problem of masking.
Response: The use of pesticides and other safeguards, such as
screens, are methods of reducing the risk of introducing exotic pests.
We believe that the use of pesticides with other safeguards will result
in a product that is essentially pest-free. Nineteen years of
experience with six other genera of plants in growing media supports
the concept of using multiple safeguards. This systems approach has
long been used here and in foreign countries to reduce pest risk and to
provide a horticultural product acceptable for domestic and
international trade.
Other Safeguard Concerns
Several commenters stated that they have visited growing facilities
that are likely candidates for growing articles under the regulations,
and stated that the physical and procedural safeguards required by the
regulations are not in place.
Response: Shipments from growing facilities may not begin until
after the required growing agreements have been signed. APHIS will not
sign an agreement until the required safeguards and procedures are in
place.
Concerns About APHIS Resources
Commenters raised the following questions and concerns about the
level of APHIS resources for enforcing the proposed regulations: APHIS
does not have adequate resources and commitment to fulfill its
monitoring responsibility in foreign countries. The proposal has no
specifications for APHIS funding or staffing for inspection of
greenhouses, mother stock, and export plants. APHIS is understaffed and
politically powerless as evidenced by problems with geraniums,
poinsettia mildew, white rust, and the withdrawal from the U.S. market
of Fisher Geraniums. APHIS does not have sufficient staff at ports of
entry, as evidenced by unwanted pests that continue to be shipped in,
e.g., Xanthomonas pelargonii and the cotton moth on geraniums. Budget
cuts in USDA should prohibit any new products being considered for
importation under the regulations. APHIS cannot control likely problems
because USDA has been a primary target for budget reductions. It is
inappropriate to propose additional importation of plant genera when
many inspection positions at ports of entry are vacant. Current PPQ
staffs are not able to adequately inspect and monitor disposition of
imported plant materials. The APHIS Vision 2000 document projects
continuing decreases in PPQ staff.
Response: It is true that many variables in the annual budget
process can affect the level of resources APHIS can apply to any given
program at any given time. APHIS intends to manage its resources to
allocate the necessary number of staff hours to this program to ensure
the level of inspection and enforcement necessary for its safe
operation. If at any time we are unable to provide the resources
necessary for full implementation of the proposed requirements, we will
discontinue or limit importations under the regulations. Our statutory
authority allows us to take such action whenever it is necessary.
Several State governments indicated their desire for a system by
which APHIS would notify them of all importations destined for their
States, especially since they believe USDA has no plans to increase
port of entry inspection staff and may have to decrease current staff.
Response: APHIS has a system to notify State Departments of
Agriculture of the arrival in the United States of plants destined for
their States. Any State may request and receive notification from APHIS
of the arrival of plants imported in accordance with these regulations.
Pest Risk Analysis Methodology
Some commenters believed the database of pest/host information
APHIS assembled in the course of pest risk assessment was too narrow
and exclusive. Several felt that because the automated databases
employed do not contain reports from before 1970, applicable historical
information about possible pest risks was not included. Two commenters
cited specific pests that were not identified by the database
(pathogens from Israel and Egyptian cotton moth) and stated that these
pests should have been considered in evaluating the proposed
importations.
Some commenters felt that published reports of pests associated
with particular plant articles are an insufficient source of data for
pest risk decisionmaking. One stated that ignoring a pathogen until it
does enough damage to be noticed in research articles does not ensure
safety of our agriculture; we can't assume an organism is not of
quarantine significance only because there is little or no economic
damage or biological information or data published in scientific
journals. Another stated that a lack of information in scientific
papers on a particular pest does not constitute proof that there is no
problem with that pest. Another cited the comparative paucity of
reports in the scientific and regulatory literature of pests in Asia
and parts of Europe as a sign that the database employed by the
regulations is incomplete.
Response: The scientist obtained an excellent coverage of the
worlds' scientific literature by using the data bases in their search
for literature. In addition, PPQ furnished copies of important papers
for use in the assessment. Furthermore, scientists had the option to
consult the references to older papers that are found at the end of the
scientific articles that appear after 1970. The outside scientists had
their own references and their University libraries as well.
We agree that the pest and potential host data employed were not
and cannot be comprehensive. However, we believe the database assembled
the best feasible collection of data relevant to the decisionmaking
process required for the proposal of regulations. To address the fact
that unknown or underreported [[Page 3074]] pests no doubt exist, and
could be associated with some of the articles proposed for importation,
the growing requirements and safeguards are deliberately broad. The
safeguards address fundamental modes of pest access to hosts and
survivability of pests on hosts. The safeguards that control known
pests should also be widely effective in controlling unknown pests, and
pests that are not known to be associated with the particular articles
covered by the regulations.
Several commenters stated that the plant industry has a right to
expect that the United States government will obtain sufficient
information on potential problems and establish adequate safeguards
before allowing entry of foreign plant material. They stated that it is
not acceptable to remove existing safeguards in order to facilitate
trade simply because ``no information is available'' in the database
searches employed by APHIS. These commenters felt that whenever there
are risks associated with importing a plant article, importation should
be prohibited in accordance with the Plant Quarantine Act, unless
definitive scientific evidence exists that the article may be safely
imported under safeguards.
Response: The Plant Quarantine Act does not prohibit the
importation of any plants. However, it authorizes the Secretary of
Agriculture to determine that it is necessary to forbid the importation
of plants in order to prevent the introduction of plant diseases and
injurious insects from infested countries.
Many years ago, a general prohibition was promulgated against the
importation of plants in growing media, with certain exceptions. It
appears this prohibition was based on the idea that growing media in
general may contain many kinds of plant pests, and that elimination of
those pests by inspection or treatment was not feasible.
The exceptions were made because APHIS found that certain plants in
growing media could be safely imported into the United States. The
exceptions that existed before 1980 included, for example, plants from
most of Canada, and orchid plants on fern bark slabs. These exceptions
were made using the best information available to APHIS, and we have no
information that the plants present any significant risk of introducing
exotic plant pests. In 1980, we added five kinds of plants in growing
media that could be imported, provided that strict quarantine
conditions were observed. The plants were requested by various European
countries and some U.S. importers. The proposal to allow importation of
these plants in growing media was based on the best information
available to us at that time, which indicated the plants could be
safely imported. The validity of allowing these plants in media to be
imported is supported by the fact that many such plants have been
imported without any evidence of introducing exotic plant pests.
Now we have proposed to add five new kinds of plants established in
growing media. This final rule allows importation of four of the
proposed genera. Again, we have used the best information available,
which includes nearly 20 years of experience with potted plants from
The Netherlands to determine that the genera of plants may be imported
without significant pest risk, if the proposed conditions are observed.
Several commenters stated that since many fungi and other pests are
not well known, it is impossible to determine when a new strain of a
pest is being introduced with a newly allowed host. These commenters
opposed increasing the variety of plants imported in growing media for
this reason.
Response: The commenters should note that the plants we are
allowing to be imported may already be imported bare-rooted, and
therefore do not represent new types of host material. Certainly,
allowing the host material to be imported associated with growing media
presents some risks not presented by bare-rooted plants. However, the
risk analyses acknowledged the existence of unknown fungi and other
pests, and evaluated the likely scope of the risk they present by using
risks of known fungi and other pests as benchmarks.
Several commenters suggested that the pest risk analysis was weak
because the outside scientists who assisted in studying the risks were
not in a position to review recommended safeguards and analyze their
efficacy.
Response: We deliberately asked the researchers to evaluate the
pest risks without regard to particular potential inspections,
treatments, or other safeguards that might be imposed by APHIS. We did
this to obtain an unbiased baseline of pest risk potential, and because
we were employing the researchers to evaluate pest risks, not the
efficacy of a variety of treatments and safeguards. The selection of
particular treatment or safeguard requirements is a regulatory
decision, not a scientific one.
Several commenters felt that the proposed rule shows that APHIS
apparently ignored the findings of its own scientists and team of
outside experts, who in the Kahn report identified major risks for
importation of Rhododendron and significant risks for other genera.
Response: The Kahn report identified risks, but did not address
whether some feasible combination of safeguards could control those
risks. APHIS has extensive program operations experience and methods
development data that document which safeguards can be used to control
particular types of risks. APHIS evaluated the risks identified in the
Kahn report and concluded that import requirements and safeguards of
proven effectiveness could be employed to reduce those risks to a safe
level.
The statement that APHIS ignored the results of its own scientists
is misleading. There were two groups. One group was charged with pest
risk analysis to determine the potential risk of each organisms
assuming the only safeguard in place was inspection of a sample at a
port of entry. The reason for this specification was to allow outside
scientists to make biological assessments without being encumbered with
quarantine procedures. The thrust was toward determining the potential
risk based on life cycles-a biological assessment where the true or
projected risk may be determined.
Under those circumstances, it is not surprising that based on the
life cycles of the most important exotic pests, that the recommendation
was to prohibit Rhododendron. The scientist believed that inspection at
a port of entry, as a sole safeguard, is not an adequate safeguard to
prevent the entry of Rhododendron pests.
However, the commenter did not consider the actions of the second
group, which was charged with risk management. The second group
considered all the hazardous and high risk plant pests listed by the
scientists in the first group and set up a system of independent
safeguards listed in the proposed rule. The whole proposed rule is
equal to the sum of its parts--risk assessment and risk management.
Other Pest Risk Analysis Methodology Concerns
Commenters made the following suggestions: Pest risk analyses done
by APHIS should consider fewer plants at a time. APHIS should expand
the coverage of the analyses to ensure including the pests that pose
the greatest risk. APHIS should add an additional criterion to its risk
assessment standards to measure quality, depth, and coverage of
available information on a given genus.
Response: We conducted a pest risk analysis for each of five genera
of plants. [[Page 3075]] We believe that the various species within
each genus have sufficient similarities in terms of pest host potential
to make this a reasonable approach. We believe the analyses did address
the pests posing the greatest risk, and we are not aware of a
statistical model that demonstrates otherwise. We believe rating
quality, depth, and coverage of available information on a given genus
is best done by professional judgment of qualified plant scientists,
not by a formula, and this is the approach we used.
Preemption and Other Concerns of States
One commenter expressed concern about the preemption clause that
would prevent Hawaii from enforcing its statutes to protect Hawaiian
agriculture. This commenter stated that Hawaii is unique in having a
higher probability of pests becoming established, due to its climate.
The commenter believes APHIS should clarify at what point foreign
commerce ceases, especially as to whether affected States will be able
to participate in the decisionmaking or whether States will simply be
notified of the final decision.
Response: The extent to which this regulation would preempt State
or local requirements is no more or less than with our other
regulations. Federal regulations would preempt State or local
requirements only when they are inconsistent with the Federal
requirement. Federal requirements preempt State or local requirements
while the articles are in foreign commerce, which generally lasts at
least until the article is purchased by the ultimate user and taken to
its final destination.
Several commenters stated that the proposed changes would increase
pressure on the California Department of Food and Agriculture for
subsequent detection of pests after release by APHIS.
Response: The rule was designed to prevent the introduction of
pests, not to discover them after importation. We believe that articles
imported in accordance with the requirements of the regulations will
contain few or no significant plant pests, and should therefore require
little increase in the workload for the plant protection services of
California or other States.
Economic Concerns
A number of commenters raised concerns about the preliminary
economic analysis and suggested ways to improve it. The analysis has
been revised to address impacts on both wholesale and retail firms, to
utilize up-to-date data, and to address other concerns of commenters.
See the ``Executive Order 12866 and Regulatory Flexibility Act''
section of this document.
Some commenters thought that the economic analysis should take into
account the potential cost should dangerous pests be introduced and
cause major infestations.
Response: We think the economic analysis should focus on the
expected effects of the proposed action, and should rely as far as
possible on data that are known or can be reasonably extrapolated.
Although it is possible to assume that a pest introduction will occur
despite strict regulatory requirements, and to endow the introduced
pest with the capability to cause any degree of harm to U.S. plants,
this type of speculation does not seem to us to have much value in the
absence of any real data. We based the economic analysis on what we
believe to be the effects of the regulations, based on past experience
and study of the proposed action. The expected effects include
importation of a modest amount of plant material, without the
introduction and establishment of serious plant pests.
Other Policy Issues
One commenter stated that the APHIS mandate is to protect our
environment and not to foster foreign trade.
Response: Regulatory actions by APHIS may have positive or negative
effects on foreign trade, and we are required to analyze those likely
effects and make the analysis available to the public. However, we do
not base our import regulations on their possible effect on trade, but
on analysis of whether articles may be imported with an insignificant
risk of the introduction of plant pests.
Several commenters stated that this proposal sets a precedent that
will allow many other, more dangerous plants to be imported in media.
Response: The precedent for importing plants in growing media from
other than Canada was set in 1980, when five kinds of plants were
allowed importation in accordance with Sec. 319.37-8(e). APHIS intends
to propose allowing the importation of additional requested plants when
it finds the plants can be imported without significant risk of
introducing exotic plant pests. APHIS also intends to prohibit (or
continue prohibiting) those plants it finds can not be imported without
a significant risk of introducing exotic plant pests.
One commenter stated that APHIS must endeavor to ensure that no
pest of any plant is introduced; only after doing this can APHIS make
adjustments to promote free trade.
Response: APHIS has no authority to prohibit the importation of
plants in order to ``ensure that no pest of any plant is introduced''.
Rather, the Plant Quarantine Act gives us authority to prohibit the
importation of plants into the United States ``in order to prevent the
introduction into the United States of any tree, plant, or fruit
disease or of any injurious insect, new to or not theretofore widely
prevalent or distributed within and throughout the United States''
(emphasis added).
Endangered Species Concerns
Several commenters noted that an endangered Rhododendron species in
the United States might be damaged by alien pests introduced on
imported Rhododendron. Some commenters further argued that other plant
and tree species that are currently listed, or that are candidates for
listing, could be harmed by pests brought in with the five genera
proposed for importation.
Response: We will consult with the Fish and Wildlife Service under
the Endangered Species Act prior to taking final action on the proposal
for Rhododendron. Regarding the other genera, no commenter provided
information linking their importation to any specific risk to a
domestic species that is listed or a formal candidate for listing under
the Endangered Species Act.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined to be economically significant, and
was reviewed by OMB under Executive Order 12866.
The composite effect of this rulemaking and several anticipated
related rulemakings over the next several years, which could result in
allowing importation of over 60 genera of plants in growing media that
are currently prohibited, could have effects on U.S.-foreign
competition that are within the scope of the definition of economically
significant in Executive Order 12866.
We have prepared a final Regulatory Impact Analysis (RIA) and a
final Regulatory Flexibility Analysis (RFA) concerning the current
final rule and future rules allowing the importation of additional
plants in growing media. The exact content of future rules to be
proposed in this area, including the final list of plants to be allowed
entry established in growing media, will not be known until APHIS
completes pest risk analysis and decision-making processes necessary
for the development [[Page 3076]] of these proposed rules. Therefore,
the final RIA and RFA take a broad approach and make certain necessary
assumptions in order to form an estimate of economic effects. The RIA
and RFA assume that APHIS will propose to allow entry of all plants in
growing media for which we have received requests for entry, and make
generic assumptions about safeguards and precautionary procedures that
may be required for entry of some genera. However, it is unlikely that
APHIS, after conducting pest risk analyses, will propose to allow entry
of all requested plants. In addition, the safeguards and precautionary
procedures necessary for safe entry of some genera will be developed
and refined later in the rule development process. Therefore, the RIA
and RFA will be continually updated and refined as choices are made and
rulemaking advances, to incorporate more precise information on the
costs, benefits, and other economic effects associated with rulemaking
decisions.
The current version of the RIA and RFA addresses potential impacts
of possible future actions in general terms, and addresses the impacts
of adding the genera and requirements discussed by this proposed rule
more specifically. Copies of the RIA and RFA may be obtained by sending
a written request to the Chief, Regulatory Analysis and Development,
PPD, APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738.
This final rule will allow importation of articles of the genera
Alstroemeria, Ananas, Anthurium, and Nidularium that meet the
requirements of the regulations. We anticipate that this change would
have the following economic implications. Allowing entry of additional
genera would enhance consumer purchasing power (consumer surplus).
Foreign producers would be able to market their plants in the U.S.
market. This will likely decrease domestic prices for the four genera,
and will enable U.S. consumers to purchase a wider variety of potted
plants at lower prices.
Given prevailing price discrepancies between domestic and foreign
plant markets, revenue for domestic producers will likely decrease
slightly as a result of freer trade in the four genera affected by this
proposal. The exact amount of decrease will be determined by demand
elasticities for potted plants. The net impact to society would be
positive since consumer gains will more than offset losses incurred by
domestic producers.
Based on florist and nursery sales, the estimated value of potted
Alstroemeria, Ananas, Anthurium, and Nidularium production in the
United States totals about $1.4 million annually. This represents less
than one percent of the total annual value of the domestic nursery and
floriculture industry, estimated at about $8.9 billion. Allowing
imports of these potted plant genera could cause some domestic
producers to switch to growing other plant genera.
Utilizing available production and price data, low and high impact
scenarios we developed to estimate potential changes in net U.S.
welfare from Anthurium imports. This study assumes that prices will
drop by 10 and 30 percent in the low and high impact scenarios
respectively. A unitary supply elasticity and three demand elasticities
(-0.5, -1, and -1.5) were used to estimate a range of potential net
impacts for both scenarios.
Consumers and domestic importers of Alstroemeria, Ananas, and
Nidularium will also benefit from the rule's impact. The revisions will
increase the availability of the three genera in the U.S. market.
However, APHIS was not able to quantify the impact on the domestic
market for Alstroemeria, Ananas, and Nidularium. These three genera are
produced by a handful of small producers and data is not published to
avoid disclosing proprietary information.
The low impact scenario indicates that the rule's revisions will
increase net welfare for U.S. society by between $7,000 and $20,000.
Domestic consumers of Anthurium will incur welfare gains of between
$137,000 and $143,000. By contrast, U.S. Anthurium producers will incur
welfare losses totaling between $123,000 and $130,000.
When prices are reduced by 30 percent net welfare is increased by
between $183,000 and $283,000. Consumer welfare is increased by between
$430,000 and $490,000, and producer welfare is decreased by between
$207,000 and $246,000.
Information contained in the ``Census of Horticultural Specialties
(1988)''1 can be used to segment domestic nurseries by value of
annual sales. Value of annual sales was used as a guide in determining
which nurseries would qualify as a ``small'' business. Additionally,
the Small Business Administration (SBA) has established guidelines for
determining which economic entities meet the definition of a ``small''
entity.
\1\ Limitations of data: The Census of Horticultural Specialties
(1988) does not represent all producers of horticultural specialty
products in 1988. Because the census was voluntary, it only
represents those growers in 1987 who cooperated and provided
information on their activities for 1988. In addition, it includes
2,829 additional growers enumerated in 28 States by the National
Agricultural Statistics Service (NASS).
---------------------------------------------------------------------------
The four genera are produced by about 79 domestic producers.
Nurseries with annual sales of $3.5 million or less are considered
``small'' for purposes of this analysis. Annual receipts of less than
$3.5 million is the standard used for all industries not specifically
listed by the SBA. All of the 79 commercial nurseries are small
according to the above criteria.\2\ These nurseries are diversified
operations that produce many varieties of potted plants and other
greenhouse products. The nature of their business requires nurseries to
make frequent adjustments to the types of plants they grow and sell, as
new types become popular and public taste changes. If producing the
four genera becomes unprofitable, these nurseries should be able to
defray losses by shifting to other, more profitable product lines.
Therefore, the Agency anticipates that the revisions will not have a
significant economic impact on a substantial number of small producers.
\2\U.S. Department of Commerce; ``Census of Horticultural
Specialties (1988)''; Washington, DC. Information was not available
for Alstroemeria, Ananas, and Nidularium due to proprietary
concerns.
---------------------------------------------------------------------------
The SBA definition of a small business engaged in the import/export
business is one that employs no more than 100 employees. The number of
firms that may be qualified as a small business under this definition
cannot be determined. Small importers will likely benefit from the rule
change. The regulatory revisions will enable some small importers to
enhance their income through imports of the four genera in growing
media.
Small retailers will benefit from importation of Alstroemeria,
Ananas, Anthurium, and Nidularium in growing media. The rule will
enhance the availability and quality of potted plants in the U.S.
market. Plant retailers will benefit from lower wholesale prices and
will likely pass these savings on to their customers. This will
increase annual sales volume and revenue.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This final rule will allow Alstroemeria, Ananas,
Anthurium, and [[Page 3077]] Nidularium established in growing media to
be imported into the United States from any country that meets the
requirements of Sec. 319.37-8(e). Under this rule, State and local laws
and regulations regarding articles imported will be preempted while the
articles are in foreign commerce. Some nursery stock articles are
imported for immediate distribution and sale to the public, and remain
in foreign commerce until sold to the ultimate consumer. The question
of when foreign commerce ceases in other cases must be addressed on a
case-by-case basis. This final rule has no retroactive effect, and will
not require administrative proceedings before parties may file suit in
court.
National Environmental Policy Act
An environmental assessment and finding of no significant impact
have been prepared for this final rule. The assessment provides a basis
for the conclusion that the importation in growing media of the four
genera of plants covered by the rule, under the conditions specified in
the rule, would not present a risk of introducing or disseminating
plant pests and would not have a significant impact on the quality of
the human environment. Based on the finding of no significant impact,
the Administrator of the Animal and Plant Health Inspection Service has
determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact
were prepared in accordance with: (1) The National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.); (2) Regulations of the
Council on Environmental Quality for Implementing the Procedural
Provisions of NEPA (40 CFR Parts 1500-1508); (3) USDA Regulations
Implementing NEPA (7 CFR part 1b); and (4) APHIS Guidelines
Implementing NEPA (44 FR 50381-50384, August 28, 1979, and 44 FR 51272-
51274, August 31, 1979).
Copies of the environmental assessment and finding of no
significant impact are available for public inspection at USDA, room
1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. In addition, copies may be obtained by writing to the
individual listed under FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
This document contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Nursery stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
PART 319--FOREIGN QUARANTINE NOTICES
Accordingly, 7 CFR part 319 is amended as follows:
1. The authority citation for part 319 continues to read as
follows:
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450; 21 U.S.C.
136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).
2. In Sec. 319.37-1, the following definitions are added in
alphabetical order:
Sec. 319.37-1 Definitions.
* * * * *
Clean well water. Well water that does not contain plant pathogens
or other plant pests.
* * * * *
Potable water. Water which is approved for drinking purposes by the
national or local health authority having jurisdiction.
* * * * *
3. In Sec. 319.37-13, footnote 11 and the reference to it are
redesignated as footnote 12.
4. In Sec. 319.37-8, paragraph (e) is revised and paragraph (g) is
added to read as follows:
Sec. 319.37-8 Growing media.
* * * * *
(e) A restricted article of any of the following groups of plants
may be imported established in an approved growing medium listed in
this paragraph, if the article meets the conditions of this paragraph,
and is accompanied by a phytosanitary certificate issued by the plant
protection service of the country in which the article was grown that
declares that the article meets the conditions of this paragraph:
Alstroemeria, Ananas,11 Anthurium, Begonia, Gloxinia (=
Sinningia), Nidularium,11 Peperomia, Polypodiophyta (=Filicales)
(ferns), and Saintpaulia.
\11\These articles are bromeliads, and if imported into Hawaii,
bromeliads are subject to postentry quarantine in accordance with
Sec. 319.37-7.
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(1) Approved growing media are baked expanded clay pellets, cork,
glass wool, organic and inorganic fibers, peat, perlite, polymer
stabilized starch, plastic particles, phenol formaldehyde,
polyethylene, polystyrene, polyurethane, rock wool, sphagnum moss,
ureaformaldehyde, vermiculite, or volcanic rock, or any combination of
these media. Growing media must not have been previously used.
(2) Articles imported under this paragraph must be grown in
compliance with a written agreement for enforcement of this section
signed by the plant protection service of the country where grown and
Plant Protection and Quarantine, must be developed from mother stock
that was inspected and found free from evidence of disease and pests by
an APHIS inspector or foreign plant protection service inspector no
more than 60 days prior to the time the article is established in the
greenhouse (except for articles developed from seeds germinated in the
greenhouse), and must be:
(i) Grown in compliance with a written agreement between the grower
and the plant protection service of the country where the article is
grown, in which the grower agrees to comply with the provisions of this
section and to allow inspectors, and representatives of the plant
protection service of the country where the article is grown, access to
the growing facility as necessary to monitor compliance with the
provisions of this section;
(ii) Grown solely in a greenhouse in which sanitary procedures
adequate to exclude plant pests and diseases are always employed,
including cleaning and disinfection of floors, benches and tools, and
the application of measures to protect against any injurious plant
diseases, injurious insect pests, and other plant pests. The greenhouse
must be free from sand and soil and must have screening with openings
of not more than 0.6 mm on all vents and openings except entryways. All
entryways must be equipped with automatic closing doors;
(iii) Rooted and grown in an active state of foliar growth for at
least four consecutive months immediately prior to importation into the
United States, in a greenhouse unit that is used solely for articles
grown in compliance with this paragraph;
(iv) Grown from seeds germinated in the greenhouse unit; or
descended from a mother plant that was grown for at least 9 months in
the exporting country prior to importation into the United States of
the descendent plants, provided that if the mother plant was imported
into the exporting country from another country, it must be:
(A) Grown for at least 12 months in the exporting country prior to
importation of the descendent plants into the United States, or
(B) Treated at the time of importation into the exporting country
with a [[Page 3078]] treatment prescribed for pests of that plant by
the plant protection service of the exporting country and then grown
for at least 9 months in the exporting country prior to importation of
the descendent plants into the United States;
(v) Watered only with rainwater that has been boiled or
pasteurized, with clean well water, or with potable water;
(vi) Rooted and grown in approved growing media listed in
Sec. 319.37-8(e)(1) on benches supported by legs and raised at least 46
cm above the floor;
(vii) Stored and packaged only in areas free of sand, soil, earth,
and plant pests; and,
(viii) Inspected in the greenhouse and found free from evidence of
plant pests and diseases by an APHIS inspector or an inspector of the
plant protection service of the exporting country, no more than 30 days
prior to the date of export to the United States.
* * * * *
(g) Pest risk evaluation standards for plants established in
growing media. When evaluating a request to allow importation of
additional taxa of plants established in growing media, the Animal and
Plant Health Inspection Service will conduct the following analysis in
determining the pest risks associated with each requested plant article
and in determining whether or not to propose allowing importation into
the United States of the requested plant article.
(1) Collect commodity information.
(i) Determine the kind of growing medium, origin and taxon of the
regulated article.
(ii) Collect information on the method of preparing the regulated
article for importation.
(iii) Evaluate history of past plant pest interceptions or
introductions (including data from plant protection services of foreign
countries) associated with each regulated article.
(2) Catalog quarantine pests. For the regulated article specified
in an application, determine what plant pests or potential plant pests
are associated with the type of plant from which the regulated article
was derived, in the country and locality of origin. A plant pest that
meets one of the following criteria is a quarantine pest and will be
further evaluated in accordance with paragraph (g)(3) of this section:
(i) Non-indigenous plant pest not present in the United States;
(ii) Non-indigenous plant pest, present in the United States and
capable of further dissemination in the United States;
(iii) Non-indigenous plant pest that is present in the United
States and has reached probable limits of its ecological range, but
differs genetically from the plant pest in the United States in a way
that demonstrates a potential for greater damage potential in the
United States;
(iv) Native species of the United States that has reached probable
limits of its ecological range, but differs genetically from the plant
pest in the United States in a way that demonstrates a potential for
greater damage potential in the United States; or
(v) Non-indigenous or native plant pest that may be able to vector
another plant pest that meets one of the criteria in (g)(2)(i) through
(iv) of this section.
(3) Conduct individual pest risk assessments. Each of the
quarantine pests identified by application of the criteria in paragraph
(g)(2) of this section will be evaluated based on the following
estimates:
(i) Estimate the probability the quarantine pest will be on, with,
or in the regulated article at the time of importation;
(ii) Estimate the probability the quarantine pest will survive in
transit on the regulated article and enter the United States
undetected;
(iii) Estimate the probability of the quarantine pest colonizing
once entered into the United States;
(iv) Estimate the probability of the quarantine pest spreading
beyond the colonized area; and
(v) Estimate the actual and perceived economic, environmental and
social damage that would occur if the quarantine pest is introduced,
colonizes, and spreads.
(4) Determine overall estimation of risk based on compilation of
component estimates. This step will evaluate whether the pest risk of
importing a regulated article established in growing media, as
developed through the estimates of paragraph (g)(3) of this section, is
greater than the pest risk of importing the regulated article with bare
roots as allowed by Sec. 319.37-8(a).
(i) If the pest risk is determined to be the same or less, the
regulated article established in growing media will be allowed
importation under the same conditions as the same regulated article
with bare roots.
(ii) If the pest risk is determined to be greater for the regulated
article established in growing media, APHIS will evaluate available
mitigation measures to determine whether they would allow safe
importation of the regulated article. Mitigation measures currently in
use as requirements of this subsection, and any other mitigation
methods relevant to the regulated article and plant pests involved,
will be compared with the individual pest risk assessments in order to
determine whether requiring particular mitigation measures in
connection with importation of the regulated article would reduce the
pest risk to a level equal to or less than the risk associated with
importing the regulated article with bare roots as allowed by
Sec. 319.37-8(a). If APHIS determines that use of particular mitigation
measures could reduce the pest risk to this level, and determines that
sufficient APHIS resources are available to implement or ensure
implementation of the appropriate mitigation measures, APHIS will
propose to allow importation into the United States of the requested
regulated article if the appropriate mitigation measures are employed.
Sec. 319.37-9 [Amended]
5. In Sec. 319.37-9, the phrase ``is not intermixed with other
approved packing material;'' is removed.
Done in Washington, DC, this 9th day of January 1995.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-935 Filed 1-12-95; 8:45 am]
BILLING CODE 3410-34-P
