Importation of Plants Established in Growing Media

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