03-12988. Additional Declaration for Imported Articles of Pelargonium

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Interim rule and request for comments.

SUMMARY:

We are amending the regulations to require that an additional declaration appear on the phytosanitary certificate that must accompany all articles of Pelargonium spp. and Solanum spp. imported into the United States, except those imported under the Canadian greenhouse-grown restricted plant program. The additional declaration must state either that the articles of Pelargonium spp. and Solanum spp. were produced in a production facility that has been tested and found to be free of Ralstonia solanacearum race 3 biovar 2 or that Ralstonia solanacearum race 3 biovar 2 is not known to occur in the region in which the articles were produced. We have recently discovered that articles of Pelargonium spp. and Solanum spp. imported into the United States pose a risk of carrying this bacterial strain, which causes potato brown rot. This action is necessary to prevent the introduction of this bacterial strain into the United States.

DATES:

This interim rule was effective May 16, 2003. We will consider all comments that we receive on or before July 22, 2003.

ADDRESSES:

You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 03-019-1, 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. 03-019-1. If you use e-mail, address your comment to [e-mail]. 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. 03-019-1” on the subject line.

You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call [phone] before coming.

APHIS documents published in the Federal Register, and related information, including the names of organizations and individuals who have commented on APHIS dockets, are available on the Internet at http://www.aphis.usda.gov/​ppd/​rad/​webrepor.html.

FOR FURTHER INFORMATION CONTACT:

Mr. William Thomas, Import Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road, Unit 140, Riverdale, MD 20737-1236; [phone].

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, seeds, and plant cuttings for propagation.

Nursery stock, plants, and other propagative plant material that cannot be feasibly inspected, treated, or handled to prevent them from introducing plant pests new to or not known to be widely prevalent in or distributed within and throughout the United States are listed in the regulations as prohibited articles. Prohibited articles may not be imported into the United States, unless imported by the U.S. Department of Agriculture (USDA) for experimental or scientific purposes under specified safeguards.

Nursery stock, plants, and other propagative plant material that can be inspected, treated, or handled to prevent them from spreading plant pests are listed in the regulations as restricted articles. Under § 319.37-4 of the regulations, any restricted article offered for importation into the United States must be accompanied by a phytosanitary certificate of inspection or, in the case of greenhouse-grown plants from Canada imported in accordance with the greenhouse-grown restricted plant program described in § 319.37-4(c), a certificate of inspection in the form of a label. Other restrictions may apply to specific restricted articles under the regulations, including permit requirements, inspection, treatment, or postentry quarantine.

Tuber-bearing Solanum spp. from all regions except certain regions of Canada are prohibited from entering the United States in § 319.37-2, due to the presence of various potato diseases in the rest of the world. However, prior to the publication of this interim rule, the only restriction on the importation of articles of Pelargonium spp. (geraniums) and other articles of the genus Solanum (which includes eggplants, weeds such as nightshade, shrubs, vines, huckleberry plants, and other garden plants) other than the certification requirements of § 319.37-4 noted previously was that lots of 13 or more of such articles could only be imported or offered for importation into the United States after issuance of a written permit by the Plant Protection and Quarantine (PPQ) program of USDA's Animal and Plant Health Inspection Service (APHIS) under § 319.37-3(a)(5).

It has recently come to our attention that articles of Pelargonium spp. and Solanum spp. can serve as vectors for the transmission of potato brown rot. Potato brown rot is caused by a bacterium, Ralstonia solanacearum; race 3 of this bacterium affects the potato (Solanum tuberosum L.). This bacterium is widely distributed in temperate areas of the world, including some parts of the United States. It causes potatoes to rot through, making them unusable and seriously affecting potato yields. The bacterium is extremely difficult to eradicate both because of its many alternate hosts and because of its ability to survive in water. Letting an infected field lie fallow or using alternate, non-potato crops for a growing season is not effective, as the bacterium survives in various common weeds, including Solanum species such as nightshade. The bacterium can also be transmitted from infected fields to other fields by streams and runoff.

At least three biovars of R. solanacearum race 3 are distinguished on the basis of biochemical properties. Biovar 1, which is currently established in the United States, does not tolerate cold temperatures; its establishment is thus limited to the southern part of the United States. However, biovar 2, which is not present in the United States, is adapted to low temperatures and is found in temperate zones, meaning that it could thrive in the northern States where most U.S. potatoes are produced.

Because of the danger R. solanacearum race 3 biovar 2 poses to U.S. potatoes, it is listed in our regulations in 7 CFR 331.3(a) as a biological agent capable of posing a severe threat to plant health or plant products; accordingly, the possession, use, and transfer of R. solanacearum race 3 biovar 2 is subject to the restrictions in part 331. If R. solanacearum race 3 biovar 2 were to become established in the United States, it would likely have a devastating impact on potato production.

In 1999, R. solanacearum race 3 biovar 2 was detected on geranium cuttings in greenhouses in Pennsylvania, Delaware, New Jersey, New York, South Dakota, and Wisconsin. These detections were traced back to a production facility in Guatemala that was found to have R. solanacearum race 3 biovar 2 on its premises. PPQ inspectors found that the production facility in question and its parent “mother stock” facility in California took adequate measures to ensure that the Pelargonium spp. cuttings the Guatemala facility exported to the United States were not infected with the R. solanacearum race 3 biovar 2 bacterium. More recently, in February 2003, R. solanacearum race 3 biovar 2 was detected at nursery facilities that had received suspect geraniums from Kenya. As of March 20, 2003, there have been positive confirmations in 48 establishments, including 2 rooting stations, located in 17 States (Alabama, Delaware, Georgia, Iowa, Illinois, Indiana, Kansas, Maryland, Michigan, Minnesota, Missouri, North Carolina, New Hampshire, South Carolina, Tennessee, Virginia, and Wisconsin), and samples from plants with symptoms continue to arrive at USDA laboratories after screening at State or university diagnostic laboratories.

The regulations have not included specific provisions to ensure that articles of Pelargonium spp. offered for importation into the United States are not infected with the R. solanacearum race 3 biovar 2 bacterium. In addition, R. solanacearum race 3 biovar 2 can spread to uninfected potatoes via many articles of the genus Solanum, but the regulations have not included provisions to ensure that non-tuber-bearing Solanum spp., which may be imported into the United States with a written permit as described above, are not infected with the R. solanacearum race 3 biovar 2 bacterium.

Therefore, we are amending the regulations to require that an additional declaration appear on the phytosanitary certificate that must accompany all articles of Pelargonium spp. and Solanum spp. imported into the United States, except those imported under the Canadian greenhouse-grown restricted plant program. The additional declaration must state either that R. solanacearum race 3 biovar 2 is not known to occur in the region in which the articles in the consignment were produced or that the production facility in which the articles in the consignment were produced has been tested and found to be free of R. solanacearum race 3 biovar 2.

R. solanacearum race 3 biovar 2 is currently not known to occur in the following foreign regions: Algeria, Austria, Belarus, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Ireland, Israel, Italy, Latvia, Lithuania, Moldavia, Morocco, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tunisia, and Ukraine.

Production facilities outside of those regions wishing to export articles of Pelargonium spp. or Solanum spp. to the United States must be tested for R. solanacearum race 3 biovar 2 using a method acceptable to APHIS. We are currently aware of two acceptable testing methods: An enzyme-linked immunosorbent assay that can confirm that no Ralstonia spp. bacteria are present, and a polymerase chain reaction test that can confirm that no R. solanacearum race 3 biovar 2 bacteria are present. Other testing methods may be used if those methods are adequate to confirm that production facilities are free of R. solanacearum race 3 biovar 2.

We will continue to allow articles of Pelargonium spp. and Solanum spp. produced in Canada under the greenhouse-grown restricted plant program described in paragraph (c) of § 319.37-4 to be imported into the United States with the inspection label issued in accordance with that paragraph. The Canadian greenhouse-grown restricted plant program mandates pest and disease control practices, provides extensive information on greenhouses in Canada exporting to the United States, and requires a certification statement reading “This shipment of greenhouse grown plants meets the import requirements of the United States, and is believed to be free from injurious plant pests. Issued by Plant Protection Division, Agriculture Canada.” Because R. solanacearum race 3 biovar 2 is not known to occur in Canada, and because these additional controls are in place, we believe that restricted articles grown under this program may be safely imported without the phytosanitary certificate and additional declaration.

We are also adding articles of Pelargonium spp. and Solanum spp. that do not meet the requirements of the new paragraph § 319.37-5(r) of the regulations to the list of prohibited articles in § 319.37-2(a) so that inspectors can refuse the entry of any shipment of articles of Pelargonium spp. and Solanum spp. not meeting these requirements.

This action will help to prevent the introduction of R. solanacearum race 3 biovar 2 into the United States while allowing the continued importation of articles that have been determined to be safe.

Emergency Action

This rulemaking is necessary on an emergency basis to prevent the importation of articles of Pelargonium spp. and Solanum spp. that come from regions where R. solanacearum race 3 biovar 2 is known to occur and that have been produced in facilities that may not be free of that bacterium. Because these articles may serve as vectors for R. solanacearum race 3 biovar 2, allowing their importation to continue without specific restrictions would pose an unacceptable risk of introducing of R. solanacearum race 3 biovar 2 into the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register.

We will consider comments we receive during the comment period for this interim rule (see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Prior to the publication of this interim rule, articles of Pelargonium spp. (geraniums) and articles of non-tuber-bearing Solanum spp. such as eggplants were being imported into the United States with few restrictions. (Imports of tuber-bearing Solanum spp. from any region other than parts of Canada are prohibited by § 319.37-2.) Apart from the certification requirements of § 319.37-4 described previously, the only restriction on the importation of articles of Pelargonium spp. and non-tuber-bearing Solanum spp. was that lots of 13 or more required a written permit from PPQ. Recently, APHIS became aware that articles of Pelargonium spp. and Solanum spp. can serve as vectors for the transmission of potato brown rot.

Potato brown rot is caused by a bacterium, R. solanacearum race 3 biovar 2. This bacterium is widely distributed in temperate areas of the world and could cause severe damage to U.S. production of potatoes if it were to become established in the United States. In 2001, 1.2 million acres of potatoes were harvested in the United States. The U.S. potato harvest that year was valued at $2.9 billion, with $90 million worth of U.S. potatoes exported to the rest of the world.^[1] The bacterium causes the potatoes to develop unsightly brown rings in their tubers, making them worthless for human consumption. If U.S. potato fields were to become infected with this strain of R. solanacearum, their value could be drastically reduced, if not completely eliminated, due to the bacterium's ability to resist eradication. Furthermore, U.S. producers would most likely be required to quarantine their fields and destroy any potatoes present to prevent the spread of the disease.

The United Kingdom has experienced five outbreaks of potato brown rot that have had minor impacts on overall potato production, losses equivalent to less than a fraction of a percentage point of the total value of the potato industry in the United Kingdom.^[2] However, certain areas in South America have endured potato losses ranging from 5 percent to 100 percent due to potato brown rot. If potato brown rot was to become established in the United States, the potato industry could potentially lose hundreds of millions of dollars due to direct crop losses and indirect losses from quarantines and diminished export markets.

Pelargonium (geranium) spp.

U.S. floriculture and nursery crop sales based on grower's receipts were $14 billion in 2002. Total sales of U.S. geraniums were estimated at $204 million for 2002.^[3] The United States imported $44 million worth of cuttings and slips, of which geraniums comprised some unknown part.^[4] No specific data are available for geranium plant imports; cuttings most likely comprise the bulk of imports of geranium articles.

Solanum spp.

The genus Solanum comprises a large group of both tender and hardy, herbaceous shrubby climbing plants. Several species can be found in North America either growing wild or as decorative plants, but two—potatoes and eggplants—are grown as vegetables. Imports of potatoes are largely prohibited, except for imports from parts of Canada, which totaled $67 million worth of potatoes in 2001. Under this interim rule, Canadian potatoes will continue to be able to enter the United States with the certification required by the greenhouse-grown restricted plant program or with a phytosanitary certificate containing an additional declaration. Because Canadian potatoes imported for propagation must be accompanied by a phytosanitary certificate attesting to their region of origin to be eligible for importation into the United States, this rule is not expected to impose significant additional costs on their importation.

The United States imported $11 million worth of eggplants in 2001. Imports of eggplants and potatoes account for less than 3 percent of the value of overall U.S. production.

This interim rule will continue to allow imports of articles of Pelargonium spp. and Solanum spp. subject to specific certification requirements. This interim rule will have an insignificant impact on imports of articles of Pelargonium spp. and Solanum spp., while safeguarding U.S. agriculture from R. solanacearum race 3 biovar 2.

Impact on Small Entities

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects of their rules on small entities. The Small Business Administration (SBA) classifies nursery and tree production businesses (North American Industry Classification System code 111421) as small entities if their annual sales receipts are $750,000 or less. According to the National Agricultural Statistics Service (2001), 1,691 floriculture operations out of a total of 10,965 operations had sales of $500,000 or more. Therefore, at least 85 percent of all floriculture operations can be classified as small entities, and it is likely that an even higher percentage can be classified as small entities due to the $250,000 discrepancy.^[5]

This interim rule will continue to allow imports of articles of Pelargonium spp. and Solanum spp. as long as the facility in which they were produced has been found to be free of R. solanacearum race 3 biovar 2 or the bacterium is not known to occur in the region in which they were produced. All such articles are currently required by § 319.37-4 to be accompanied by a phytosanitary certificate of inspection when imported into the United States; the expected cost of obtaining the certification for the additional declaration is expected to be minor compared both to the value of shipments of articles of Pelargonium spp. and Solanum spp. and compared to the total cost of certification. In addition, exporters participating in the Canadian greenhouse-grown restricted plants program will not have to obtain any additional certification, further mitigating the total effect on import costs.

Small entities in the U.S. floriculture industry will not be significantly impacted due to the expected low percentage of geranium imports, the low percentage of geranium sales as a part of all floriculture sales, and the expected low cost of certification. This interim rule will safeguard U.S. agriculture from potato brown rot by restricting the entry of plants that can serve as its vectors.

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 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0221 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. 03-019-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. 03-019-1 and send your comments within 60 days of publication of this rule.

This interim rule requires that an additional declaration appear on the phytosanitary certificate that must accompany all articles of Pelargonium spp. and Solanum spp. imported into the United States, except those imported under the Canadian greenhouse-grown restricted plant program. This additional declaration must state either that the production facility in which the articles were produced has been tested and found free of R. solanacearum race 3 biovar 2 or that R. solanacearum race 3 biovar 2 is not known to occur in the region in which the articles were produced. In order to import articles of Pelargonium spp. and Solanum spp., importers will need to obtain the additional declaration that must appear on the phytosanitary certificate from the national plant protection organization in the country of origin. We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 4 hours per response.

Respondents: Growers and State plant regulatory officials.

Estimated annual number of respondents: 1,040.

Estimated annual number of responses per respondent: 20.

Estimated annual number of responses: 20,800.

Estimated total annual burden on respondents: 83,200 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at [phone].

Government Paperwork Elimination Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS’ Information Collection Coordinator, at [phone].

List of Subjects in 7 CFR Part 319

• Bees
• Coffee
• Cotton
• Fruits
• Honey
• Imports
• Logs
• Nursery stock
• Plant diseases and pests
• Quarantine
• Reporting and recordkeeping requirements
• Rice
• Vegetables

Accordingly, we are amending 7 CFR 319 as follows:

PART 319—FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 continues to read as follows:

Authority: 7 U.S.C. 450, 7711-7714, 7718, 7731, 7732, 7751-7754, and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. In the table in § 319.37-2(a), new entries for “ Pelargonium spp. not meeting the conditions for importation in § 319.37-5(r)” and “Solanum spp. not meeting the conditions for importation in § 319.37-5(r)” are added, in alphabetical order, to read as follows:

§ 319.37-2

Prohibited articles.

(a) * * *

Prohibited article (includes seeds only if specifically mentioned)	Foreign places from which prohibited	Plant pests existing in the places named and capable of being transported with the prohibited article
*         *         *         *         *         *         *
Pelargonium spp. not meeting the conditions for importation in § 319.37-5(r)	All	Potato brown rot (Ralstonia solanacearum race 3 biovar 2).
*         *         *         *         *         *         *
Solanum spp. not meeting the conditions for importation in § 319.37-5(r)	All	Potato brown rot (Ralstonia solanacearum race 3 biovar 2).
*         *         *         *         *         *         *

* * * * *

3. In § 319.37-5, a new paragraph (r) is added and the OMB control number citation at the end of the section is revised to read as follows:

§ 319.37-5

Special foreign inspection and certification requirements.

* * * * *

(r) Any restricted article of Pelargonium spp. or Solanum spp. presented for importation into the United States must meet the following requirements:

(1) Any article of Pelargonium spp. or Solanum spp. imported from Canada under the provisions of the greenhouse-grown restricted plant program as described in § 319.37-4(c) may be presented for importation at the port of first arrival in the United States with a certificate of inspection in the form of a label in accordance with § 319.37-4(c)(1)(iv).

(2) For any article of Pelargonium spp. or Solanum spp. that does not meet the requirements of paragraph (r)(1) of this section and is from a region where Ralstonia solanacearum race 3 biovar 2 is not known to occur at the time of arrival at the port of first arrival in the United States, the phytosanitary certificate of inspection required by § 319.37-4 must contain an additional declaration that states “Ralstonia solanacearum race 3 biovar 2 is not known to occur in the region of origin of the articles in this shipment.”

(3) For any article of Pelargonium spp. or Solanum spp. that is from a region where Ralstonia solanacearum race 3 biovar 2 is known to occur at the time of arrival at the port of first arrival in the United States, the phytosanitary certificate of inspection required by § 319.37-4 must contain an additional declaration that states “The production facility where these plants were produced has been tested and found to be free of Ralstonia solanacearum race 3 biovar 2.”

(Approved by the Office of Management and Budget under control number 0579-0049, 0579-0176, and 0579-0221.)

Done in Washington, DC, this 16th day of May 2003.

Kevin Shea,

Acting Administrator, Animal and Plant Health Inspection Service.

Footnotes

1.  National Agricultural Statistics Service data, U.S. potato production, 2001.

2.  United Kingdom Department for Environment, Food and Rural Affairs.

3.  Electronic Outlook Report from the Economic Research Service, Floriculture and Nursery Crops Outlook, September 12th, 2002, Alberto Jerardo.

4.  World Trade Atlas 2002, U.S. imports of unrooted cuttings and slips of plants, code # 0602100000.

5.  National Agricultural Statistics Service, Agricultural Statistics Board, U.S. Department of Agriculture, 2001 Floriculture Crops.