Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3067

for compensation begins. After 1 year,

the individual is entitled to the rights

accorded individuals who fully or

partially recover, as applicable.

(d) Partially recovered. Agencies must

make every effort to restore, according

to the circumstances in each case, an

individual who has partially recovered

from a compensable injury and who is

able to return to limited duty. At a

minimum, this would mean treating

these employees substantially the same

as other handicapped individuals under

the Rehabilitation Act of 1973, as

amended. (See 29 U.S.C. 791(b) and

794.) If the individual fully recovers, he

or she is entitled to be considered for

the position held at the time of injury,

or an equivalent one. A partially

recovered employee is expected to seek

reemployment as soon as he or she is

able.

§ 353.302 Status upon reemployment.

An individual who is restored

following a compensable injury is

generally entitled to be treated as

though he or she had never left. This

means that the entire period the

employee was receiving compensation

is creditable for purposes of rights and

benefits based upon length of service,

including within-grade increases, career

tenure, leave rate accrual, and

completion of probation. However, an

injured employee enjoys no special

protections in a reduction in force.

Separation by reduction in force or for

cause while on compensation

terminates entitlement to credit for the

subsequent period the individual

continues to receive compensation, and

also means the individual has no

restoration rights.

Subpart D—Appeal Rights

§ 353.401 Appeals to the Merit Systems

Protection Board.

(a) Except as provided in paragraphs

(b) and (c) of this section, an employee

or former employee of an agency in the

executive branch (including the U.S.

Postal Service and the Postal Rate

Commission) who is covered by this

part may appeal to the MSPB an

agency’s failure to restore, improper

restoration, or failure to return an

employee following a leave of absence.

All appeals are to be submitted in

accordance with MSPB’s regulations.

(b) An individual who fully recovers

from a compensable injury more than 1

year after compensation begins may

appeal to MSPB as provided for in parts

302 and 330 of this chapter for excepted

and competitive service employees,

respectively.

(c) An individual who is partially

recovered from a compensable injury

may appeal to MSPB for a determination

of whether the agency is acting

arbitrarily and capriciously in denying

restoration. Upon reemployment, a

partially recovered employee may also

appeal the agency’s failure to credit time

spent on compensation for purposes of

rights and benefits based upon length of

service.

PART 930—PROGRAMS FOR

SPECIFIC POSITIONS AND

EXAMINATION (MISCELLANEOUS)

Subpart A—Motor Vehicle Operators

52. The authority citation for subpart

A of part 930 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3320, 7301; 40

U.S.C. 491; E.O. 10577, 3 CFR, 1954–1958

Comp., p. 218; E.O. 11222, 3 CFR, 1964–1965

Comp., p. 306. (Separate authority is listed

under § 930.107).

52. In § 930.105, paragraph (a) is

revised to read as follows:

§ 930.105 Minimum requirements for

competitive and excepted service positions.

(a) An agency may fill motor vehicle

operator positions in the competitive or

excepted services by any of the methods

normally authorized for filling

positions. Applicants for motor vehicle

operator positions and incidental

operators must meet the following

requirements for these positions:

(1) Possess a safe driving record;

(2) Possess a valid State license;

(3) Except as provided in § 930.107,

pass a road test; and

(4) Demonstrate that they are

medically qualified to operate the

appropriate motor vehicle safely in

accordance with the standards and

procedures established in this part.

* * * * *

54. Section 930.106 is revised to read

as follows:

§ 930.106 Details in the competitive

service.

An agency may detail an employee to

an operator position in the competitive

service for 30 days or less when the

employee possesses a State license. For

details exceeding 30 days, the employee

must meet all the requirements of

§ 930.105 and any applicable OPM and

agency regulations governing such

details.

55. Section 930.108 is revised to read

as follows:

§ 930.108 Periodic medical evaluation.

At least once every 4 years, each

agency will ensure that employees who

operate Government-owned or leased

vehicles are medically able to do so

without undue risk to themselves or

others. When there is a question about

an employee’s ability to operate a motor

vehicle safely, the employee may be

referred for a medical examination in

accordance with the provisions of part

339 of this chapter.

56. In § 930.109 paragraph (b) is

revised to read as follows:

§ 930.109 Periodic review and renewal of

authorization.

* * * * *

(b) An agency may renew the

employee’s authorization only after the

appropriate agency official has

determined that the employee is

medically qualified and continues to

demonstrate competence to operate the

type of motor vehicle to which assigned

based on a continued safe driving

record.

[FR Doc. 95–830 Filed 1–10–95; 3:46 pm]

BILLING CODE 6325–01–M

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.

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,
3068 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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 § 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

§ 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.
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 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 § 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 § 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 § 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
3070 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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 NonCompliance

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 noncompliance 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
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 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.
3072 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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, recordkeeping, 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’’ (§ 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
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 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
3074 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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.
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 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 upto-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

§ 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
3076 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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).

2U.S. Department of Commerce; ‘‘Census of

Horticultural Specialties (1988)’’; Washington, DC.

Information was not available for Alstroemeria,

Ananas, and Nidularium due to proprietary

concerns.

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.

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.

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
Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations 3077

11These articles are bromeliads, and if imported

into Hawaii, bromeliads are subject to postentry

quarantine in accordance with § 319.37–7.

Nidularium established in growing

media to be imported into the United

States from any country that meets the

requirements of § 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 § 319.37–1, the following

definitions are added in alphabetical

order:

§ 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 § 319.37–13, footnote 11 and the

reference to it are redesignated as

footnote 12.

4. In § 319.37–8, paragraph (e) is

revised and paragraph (g) is added to

read as follows:

§ 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.

(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
3078 Federal Register / Vol. 60, No. 9 / Friday, January 13, 1995 / Rules and Regulations

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 § 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 § 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 § 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.

§ 319.37–9 [Amended]

5. In § 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

SECURITIES AND EXCHANGE

COMMISSION

17 CFR Part 249

[Release Nos. 34–35204]

RIN 3235–AG10

Rulemaking for EDGAR System;

Correction

AGENCY: Securities and Exchange

Commission.

ACTION: Correction to final rules.

SUMMARY: This document contains a

correction to the final rules that were

published Friday, December 30, 1994

(59 FR 67752). Those rules relate to the

implementation of the Electronic Data

Gathering, Analysis and Retrieval

(‘‘EDGAR’’) system.

EFFECTIVE DATE: The EDGAR rules and

amendments are effective January 30,

1995.

FOR FURTHER INFORMATION CONTACT:

James R. Budge, Office of Disclosure

Policy, Division of Corporation Finance

at (202) 942–2910.

SUPPLEMENTARY INFORMATION:

Background

The disclosure form that is the subject

of this correction was intended to be