Importation of Rhododendron Established in Growing Media

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 89-154-3]

Importation of Rhododendron Established in Growing Media

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule; reopening and extension of comment period.

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SUMMARY: We are reopening and extending the comment period on a

proposal to allow the importation of Rhododendron established in

growing media. Final action on that proposal had been deferred to allow

consultation regarding the action with the United States Fish and

Wildlife Service, in accordance with the Endangered Species Act. That

consultation has been completed, and, as a result, the proposed action

has been limited to Rhododendron imported only from Europe. This

reopening of the comment period will allow interested parties an

opportunity to comment on this change to the original proposal.

DATES: Consideration will be given only to comments received on or

before June 1, 1998.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 89-154-3, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road, Riverdale, MD 20737-1238. Please state

that your comments refer to Docket No. 89-154-3. Comments received may

be inspected 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. Persons wishing to inspect

comments are requested to call ahead on (202) 690-2817 to facilitate

entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Import

Specialist, PIMT, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD

20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

On September 7, 1993, we published in the Federal Register a

proposed rule (58 FR 47074-47084, Docket No. 89-154-1) to allow the

importation of five genera of plants established in growing media. That

proposal is referred to below as ``the proposed rule.'' We accepted

comments on the proposed rule for a period of 90 days, ending December

6, 1993.

In a final rule published in the Federal Register on January 13,

1995, and effective on February 13, 1995 (60 FR 3067-3078, Docket No.

89-154-2), the Animal and Plant Health Inspection Service (APHIS)

finalized provisions for importation of Alstroemeria, Ananas,

Anthurium, and Nidularium. The final rule postponed action on

Rhododendron established in growing media.

Based on comments submitted on the proposed rule, it was determined

that before taking final action with regard to importing Rhododendron,

APHIS should consult with the United States Fish and Wildlife Service

regarding potential endangered species impacts associated with

importation of Rhododendron. This consultation was 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 (16 U.S.C. 1531 et seq.). Several commenters

noted that an endangered Rhododendron species in the United States

might be damaged by alien pests introduced on imported Rhododendron.

We have now completed that consultation, in compliance with Section

7 of the Endangered Species Act (16 U.S.C. 1537). That consultation

1 revealed that if Rhododendron in growing media is imported

from Europe in accordance with the requirements proposed by APHIS, such

importation is not likely to adversely affect endangered or threatened

species or their habitats. However, the consultation also revealed that

insufficient data has been assembled to conclusively demonstrate that

importing Rhododendron in growing media from areas other than Europe

would not adversely affect endangered or threatened species or their

habitats.

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\1\ The letters documenting the consultation are available for

viewing in the comment reading room (see ADDRESSES) or by contacting

the person listed under FOR FURTHER INFORMATION CONTACT.

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Therefore, we are modifying the provisions of the proposed rule

that apply to Rhododendron, to apply only to Rhododendron from Europe.

We propose to add the phrase ``Rhododendron from Europe'' to the list

in Sec. 319.37-8(e) of plants that may be imported established in

approved growing media. Compliance with Section 7 of the Endangered

Species Act has been completed for the importation of Rhododendron in

growing media from European countries. Should others propose to

initiate importation of Rhododendron in growing media, that proposed

action would be reviewed with the Fish and Wildlife Service under the

provisions of the Endangered Species Act at the time of the review.

We are not modifying the provisions of the proposed rule pertaining

to three mitigation measures specific to Rhododendron. These mitigation

measures appeared in the original proposal on September 7, 1993 (58 FR

at 47079-80), and, for easy reference, are repeated here. With regard

to the first mitigation measure, we propose that the greenhouse screen

openings, in facilities which grow and import Rhododendron in

accordance with Sec. 319.37-8(e), shall not be greater than 0.2 mm.

This differs from the current requirement of no greater than 0.6 mm

screen openings for all other genera. As indicated in the original

proposal, we had identified 10 significant pests of Rhododendron that

could enter greenhouses through openings greater than 0.2 mm. These

Rhododendron pests are geometrid and tortricid moths of the genera

Acleris, Arichanna, Cacoecimorpha, and Olethreutes, the mites

Tarsonemus and Phyllocoptes, the whitefly Dialeurodes chittendenu, the

leafhopper Phiogotettis cyclops, the lace bug Stephanitis caucasia, and

the scale insect Eulecanium. This first mitigation measure specific to

Rhododendron appears as a proposed amendment to Sec. 319.37-

8(e)(2)(ii).

Secondly, we propose to require that the mother stock of

Rhododendron spp. grown in accordance with the

[[Page 23684]]

regulations be visually inspected for signs of specified diseases that

could cause substantial damage if introduced into the United States.

Visual inspection of Rhododendron would be required for evidence of

diseases caused by Chrysomyxa ledi var. rhododendri, Erysiphe

cruciferarum, Erysiphe rhododendri, Exobasidium vaccinum and E.

vaccinum var. japonicum, and Phomopsis theae. This second mitigation

measure specific to Rhododendron appears in proposed Sec. 319.37-

8(e)(2)(ix).

Lastly, we propose that Rhododendron species must be introduced

into the greenhouse as tissue cultures or as rootless stem cuttings

from mother plants that have received a pesticide dip prescribed by the

plant protection service of the exporting country for mites, scale

insects, and whitefly, and that have been grown for at least the

previous 6 months in a greenhouse that meets the requirements of

Sec. 319.37-8(e)(2)(ii). Treating the mother plants for these pests and

growing them in a controlled greenhouse for 6 months makes it very

unlikely the mother plants will harbor pests. Allowing the mother

plants to be propagated only through tissue culture or rootless stem

cuttings makes it probable that, even if the mother plant somehow

became infested with these pests, they would not be included in the

tissue used to establish new plants for export to the United States.

This third mitigation measure specific to Rhododendron appears in

proposed Sec. 319.37-8(e)(2)(x).

Reopening and Extension of Comment Period

We are reopening the comment period on that portion of Docket No.

89-154-1 that concerns the importation of Rhododendron established in

growing media. We will accept comments for 30 days on the proposal to

allow importation of Rhododendron in growing media from Europe only.

This action will provide interested persons with additional time in

which to prepare comments on the importation of Rhododendron in growing

media from Europe.

Comments already received concerning the proposed importation of

Rhododendron will remain under consideration and need not be

resubmitted.

Executive Order 12866 and Regulatory Flexibility Act

The proposed rule (58 FR 47074-47084, Docket No. 89-154-1) 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.

At the time we published the proposal to allow importation of

Rhododendron in growing media on September 7, 1993 (58 FR 47074-47084,

Docket No. 89-154-1), we prepared a preliminary Regulatory Impact

Analysis (RIA) and a initial Regulatory Flexibility Analysis (RFA)

concerning the proposal and future rules allowing the importation of

additional plants in growing media. The RIA and RFA took a broad

approach and made certain necessary assumptions in order to form an

estimate of economic effects. The RIA and RFA assumed that APHIS will

propose to allow entry of all plants in growing media for which we have

received requests for entry, and made generic assumptions about

safeguards and precautionary procedures that may be required for entry

of some genera. As announced in the proposed rule, 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 preliminary RIA and RFA addressed the importation of all

requested genera, including Rhododendron. The preliminary RIA and RFA

were updated in a final RIA and RFA in the final rule, which allowed

importation of four genera in growing media (but not Rhododendron). The

final RIA and RFA did not address Rhododendron. A cost-benefit analysis

and final RFA addressing Rhododendron, including any data obtained as a

result of comments, will be available when a final rule is published

for importing Rhododendron from Europe in growing media. Copies of the

preliminary RIA and RFA may be obtained by sending a written request to

the Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, 4700

River Road Unit 118, Riverdale, MD 20737-1238.

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. This proposed rule would allow Rhododendron

established in growing media to be imported into the United States from

any country in Europe that meets the requirements of Sec. 319.37-8(e).

If this proposed rule is adopted: (1) All State and local laws and

regulations that are inconsistent with this rule will be preempted; (2)

no retroactive effect will be given to this rule; and (3)

administrative proceedings will not be required before parties may file

suit in court challenging this rule. Some nursery stock is imported for

immediate distribution and sale to the consuming public, and would

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. If this proposed rule is adopted, no

retroactive effect will be given to the rule, and the rule will not

require administrative proceedings before parties may file suit in

court challenging the rule.

Paperwork Reduction Act

This proposed rule contains no new information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by

reference, Nursery Stock, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, 7 CFR part 319 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 would continue to read as

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

Sec. 319.37-8 [Amended]

2. Section 319.37-8 would be amended as follows:

a. In paragraph (e) introductory text, by adding the phrase

``Rhododendron from Europe,'' immediately before the phrase ``and

Saintpaulia.''

b. In the second sentence in paragraph (e)(2)(ii), by adding the

phrase ``(0.2 mm for greenhouses growing Rhododendron spp.)''

immediately after the phrase ``0.6 mm''.

c. In paragraph (e)(2)(vii), by removing the word ``and,''

immediately after the word ``pests;''.

d. In paragraph (e)(2)(viii), by removing the period at the end of

the paragraph and adding a semi-colon in its place.

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e. By adding new paragraphs (e)(2)(ix) and (e)(2)(x) to read as

follows:

Sec. 319.37-8 Growing media.

* * * * *

(e) * * *

(2) * * *

(ix) If Rhododendron species, propagated from mother plants that

have been visually inspected by an APHIS inspector or an inspector of

the plant protection service of the exporting country, and found free

of evidence of diseases caused by the following pathogens: Chrysomyxa

ledi var. rhododendri, Erysiphe cruciferarum, Erysiphe rhododendri,

Exobasidium vaccinum and vaccinum var. japonicum, and Phomopsis theae;

and

(x) If Rhododendron species, introduced into the greenhouse as

tissue cultures or as rootless stem cuttings from mother plants that:

(A) Have received a pesticide dip prescribed by the plant

protection service of the exporting country for mites, scale insects,

and whitefly; and

(B) Have been grown for at least the previous 6 months in a

greenhouse that meets the requirements of Sec. 319.37-8(e)(2)(ii).

* * * * *

Done in Washington, DC, this 23rd day of April 1998.

Charles P. Schwalbe,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-11497 Filed 4-29-98; 8:45 am]

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