[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Proposed Rules]
[Pages 23683-23685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11497]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 63, No. 83 / Thursday, April 30, 1998 / 
Proposed Rules

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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 
<SUP>1</SUP> 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

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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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