[Federal Register Volume 60, Number 9 (Friday, January 13, 1995)]
[Rules and Regulations]
[Pages 3067-3078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-935]



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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 89-154-2]
RIN 0579-AA21


Importation of Plants Established in Growing Media

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending ``Subpart--Nursery Stock, Plants, Roots, 
Bulbs, Seeds, and Other Plant Products'' to allow the importation of 
four additional genera of plants established in growing media. These 
genera are Alstroemeria, Ananas, Anthurium, and Nidularium. We are 
deferring final action on importation of Rhododendron pending 
consultation under the Endangered Species Act on the potential impacts 
of importing Rhododendron established in growing media. We are also 
adopting the pest risk evaluation standards we proposed for evaluating 
pest risks associated with importing plants established in growing 
media. This final rule will affect persons interested in importing 
Alstroemeria, Ananas, Anthurium, and Nidularium, and domestic growers 
of these genera.

EFFECTIVE DATE: February 13, 1995.

FOR FURTHER INFORMATION CONTACT: Peter Grosser or Frank Cooper, Senior 
Operations Officers, Port Operations, [[Page 3068]] Plant Protection 
and Quarantine, APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738. The 
telephone number for the agency contacts will change when agency 
offices in Hyattsville, MD, move to Riverdale, MD, during January. 
Telephone: (301) 436-8295 (Hyattsville); (301) 734-8295 (Riverdale).

SUPPLEMENTARY INFORMATION:

Background

    The Plant Quarantine Act (7 U.S.C. 151 et seq.) and the Federal 
Plant Pest Act (7 U.S.C. 150aa et seq.) authorize us to prohibit or 
restrict the importation into the United States of any plants, roots, 
bulbs, seeds, or other plant products in order to prevent the 
introduction into the United States of plant pests.
    Regulations promulgated under this authority, among others, include 
7 CFR 319.37 through 319.37-14, ``Subpart--Nursery Stock, Plants, 
Roots, Bulbs, Seeds, and Other Plant Products'' (the regulations). 
These regulations govern the importation of living plants, plant parts, 
and seeds for or capable of propagation, and related articles. Other 
sections of part 319 deal with articles such as cut flowers, or fruits 
and vegetables intended for consumption.
    The regulations restrict or prohibit the importation of most 
nursery stock, plants, roots, bulbs, seeds, and other plant products. 
These articles are classified as either ``prohibited articles'' or 
``restricted articles.''
    A prohibited article is an article that the Deputy Administrator 
for Plant Protection and Quarantine (PPQ), Animal and Plant Health 
Inspection Service (APHIS), has determined cannot feasibly be 
inspected, treated, or handled to prevent it from introducing plant 
pests new to or not widely prevalent or distributed within and 
throughout the United States, if imported into the United States. 
Prohibited articles may not be imported into the United States, unless 
imported by the United States Department of Agriculture (USDA) for 
experimental or scientific purposes under specified safeguards.
    A restricted article is an article that the Deputy Administrator 
for PPQ has determined can be inspected, treated, or handled to 
essentially eliminate the risk of its spreading plant pests if imported 
into the United States. Restricted articles may be imported into the 
United States if they are imported in compliance with restrictions that 
may include permit and phytosanitary certificate requirements, 
inspection, treatment, or postentry quarantine.
    Section 319.37-8, ``Growing Media,'' allows importation of certain 
restricted articles established in growing media (potted plants), if 
the plants were potted in an approved growing medium and were grown in 
a greenhouse in accordance with safeguard conditions specified in the 
regulations. Potted plants that currently may be imported under the 
regulations include Polypodiophyta (ferns), African violet, gloxinia, 
begonia, peperomia, and hyacinth.

Proposed Rule

    On September 7, 1993, APHIS published in the Federal Register (58 
FR 47074-47084, Docket No. 89-154-1) a proposal to amend Sec. 319.37-8 
to allow the importation of plants in growing media (potted plants) of 
the following additional genera: Alstroemeria, Ananas, Anthurium, 
Nidularium, and Rhododendron. We solicited comments concerning our 
proposal for 60 days ending December 6, 1993. During this comment 
period, we also received comments at a public hearing which was 
announced in the proposed rule and which was held in Washington, DC, on 
October 26, 1993.
    We received 122 comments by the close of the comment period. They 
were from embassies of foreign governments, domestic grower and nursery 
associations, State plant protection agencies, environmental interest 
organizations, and foreign nurseries and greenhouses. The majority of 
these commenters opposed adoption of the proposal to allow the 
importation of five additional genera of plants in growing media. 
Several commenters suggested changes to pest risk assessment 
procedures, without specifically opposing adoption of the proposed pest 
risk evaluation standards for plants in growing media. No commenters 
opposed the proposal to approve several new growing media, although 
several commenters expressed the opinion that plant pests could grow in 
the already approved growing media. All of the comments are discussed 
below, under ``Comments and Responses.''
    After carefully evaluating the comments on the proposed rule, APHIS 
has made the following decisions on the proposal:
    1. We will adopt the proposed pest risk evaluation standards and 
the proposed requirements for specific inspection, handling, and 
growing conditions for all plants in growing media that are allowed to 
be imported under the regulations. We believe these standards and 
requirements clearly provide better pest protection than the 
requirements now contained in Sec. 319.37-8. Therefore, we are revising 
the regulations to adopt the proposed standards and requirements, with 
several slight modifications made in response to comments. These 
modifications are discussed below, under ``Comments and Responses.''
    2. In addition to the six kinds of plants in growing media 
previously allowed importation by the regulations (Polypodiophyta, 
African violets, gloxinia, begonia, peperomia, and hyacinth), we will 
allow the importation of the following genera of plants in growing 
media: Alstroemeria, Ananas, Anthurium, and Nidularium. We believe that 
these plants in growing media may be safely imported without 
significant risk of introducing into the United States any tree, plant 
or fruit disease, or any injurious insect, new to or not widely 
prevalent or distributed within and throughout the United States. 
Comments objecting to the importation of these genera in growing media 
did not provide sufficient evidence to convince us that importing these 
genera would present a significant risk of introducing and spreading 
dangerous plant pests.
    3. We will defer action on the provisions of the proposed rule that 
apply to Rhododendron. Commenters identified specific issues under the 
Endangered Species Act regarding the proposed importation of 
Rhododendron in growing media. For instance, some commenters noted that 
an endangered Rhododendron species in the United States might be 
damaged by alien pests introduced or imported on Rhododendron. We have 
determined that in compliance with Section 7 of the Endangered Species 
Act (16 U.S.C. 1537), consultation is necessary between APHIS and the 
Fish and Wildlife Service before we take final action on our proposal 
to allow the importation of Rhododendron in growing media. This 
consultation is necessary due to the presence in the United States of 
species of Rhododendron that are listed, and are proposed for listing, 
as endangered or threatened under the Endangered Species Act.
    After completion of the Endangered Species Act consultation, we 
will proceed with rulemaking to either finalize or withdraw the 
proposed changes concerning importation of Rhododendron.

Comments and Responses

    The comments have been summarized and grouped below according to 
the comment topics. Our responses to each topic follow the summary. 
[[Page 3069]] 
    Comments that specifically addressed only Rhododendron issues are 
not discussed in this document. They will be addressed in any future 
rulemaking on the proposed Rhododendron provisions.

The Acceptable Level of Risk for Importing Plants in Growing Media

    Several commenters argued that APHIS is subject to strict statutory 
standards that would preclude regulations allowing importation of 
articles if there is any plant pest risk associated with the 
importation. One commenter stated that ``[the Plant Quarantine Act on 
its face indicates that the Secretary of Agriculture and his delegate, 
APHIS, should err on the side of caution: `whenever' importation of 
plants `may result' in the introduction and spread of injurious plant 
pests, then importations `shall' be restricted.'' This commenter cited 
Sec. 159 of the Plant Quarantine Act (7 U.S.C. 151 et seq.), which 
states:

    Whenever the Secretary of Agriculture shall determine that the 
unrestricted importation of any plants, fruits, vegetables, roots, 
bulbs, seeds, or other plant products not included by the term 
``nursery stock'' as defined in section 152 of this title may result 
in the entry into the United States or any of its Territories or 
Districts of injurious plant diseases or insect pests, he shall 
promulgate his determination, specifying the class of plants and 
plant products the importation of which shall be restricted and the 
country and locality where they are grown, and thereafter, and until 
such promulgation is withdrawn, such plants and plant products 
imported or offered for import into the United States or any of its 
Territories or Districts shall be subject to all the provisions of 
sections 154 and 156 to 158 of this title.

    Response: This section clearly states that it is the responsibility 
of the Secretary to determine when unrestricted importations ``may 
result'' in the introduction and spread of injurious plant pests. If 
such a determination is made, the Secretary is not required to prohibit 
the importation. He or she may restrict it; the appropriate restriction 
may involve a prohibition, or may involve importation under conditions 
to control pest risk.
    Therefore, the Secretary is not obliged to prohibit the importation 
of the genera in the proposal `whenever' importation of plants `may 
result' in the introduction and spread of injurious plant pests. 
Instead, importation of the articles is subject to the standards of 
Sec. 154, which give the Secretary a great deal of discretion in 
deciding when and what types of import restrictions are necessary. 
Section 154 generally requires that nursery stock imports must be 
authorized by a permit, accompanied by a certificate, and imported 
``under such conditions and regulations as the said Secretary of 
Agriculture may prescribe.'' The Secretary is also authorized ``to 
limit entry of nursery stock from foreign countries under such rules 
and regulations as he may deem necessary'' (emphasis added).
    The proposed rule supported the goal of preventing the introduction 
and establishment of dangerous plant pests by proposing methods the 
Secretary deems effective in supporting this goal. Therefore, we 
believe the proposed action is consistent with the Plant Quarantine Act 
standards.

Adequacy of Port-of-Arrival Inspection To Mitigate Pest Risk

    Many commenters stated that inspection at the port of arrival is 
not an effective means for preventing the entry of pests. Some cited 
instances where shipments that passed such an inspection were later 
found to be infested with pests. Other commenters noted that many 
diseases and small pests cannot be effectively identified through 
visual inspection. Some questioned whether APHIS had sufficient 
resources to continuously implement effective inspection programs at 
all ports of entry.
    Response: Current conditions for any imported article allow for 
inspection at the port of first arrival; however, because any pests 
that might be in the media cannot be readily observed, we have imposed 
conditions concerning origin, testing, growth, inspection and storage 
of the plants that should essentially eliminate the risk of exotic 
pests being present in the media. This scheme to ensure freedom of the 
media from pests has been proven over nearly 20 years of importations.

Reliance on Foreign Plant Protection Services

    Several commenters stated that the proposal relies heavily on 
cooperation by the plant protection services of foreign countries to 
inspect growing facilities and ensure that articles to be exported to 
the United States are grown in compliance with regulatory standards. 
They maintained that these foreign plant protection services may not 
effectively fulfill their role in enforcing the regulations, and that 
APHIS does not have the authority or resources to ensure that they do 
so.
    Response: Each foreign grower is required to sign an agreement with 
the plant protection organization of the foreign country, agreeing to 
abide by the conditions of our regulations. In addition, each exporting 
country must sign an agreement with APHIS agreeing to implement the 
conditions of the regulations. The producing greenhouses and the 
growing plants must be made available for inspection by inspectors of 
APHIS and the foreign plant protection organization. No shipment will 
be allowed entry into the United States unless the accompanying 
phytosanitary certificate is endorsed by an APHIS inspector, either in 
the country of export or the port of entry, as required by the 
regulation. This endorsement is based on monitoring inspections that 
show that the plants were grown under the requirements of the 
regulations. Also, if pests are found or other violations noted, 
individual shippers or greenhouse growers can be suspended from 
preclearance. APHIS has a record of prohibiting the importation of, or 
requiring treatments for, various commodities that were repeatedly 
found infested or infected with exotic plant pests. However, no such 
action has been taken with plants in growing media shipped under 
Sec. 319.37-8(e) or -8(f) because no exotic pests have ever been found 
with such shipments.

Comments in Favor of the Proposal

    Several commenters stressed that the APHIS proposal does not relax 
the level of protection against pests associated with plants imported 
in growing media, and that the proposal essentially would allow the 
entry in media of genera that are already allowed entry if bare-rooted. 
These commenters also stated that the proposed media have proven to be 
of no or very low risk, and that compliance agreements between foreign 
growers and their governments and between foreign governments and APHIS 
provide all necessary guarantees and are enforceable.
    Supportive commenters also believe that adequate inspection will be 
available since only a few growers will participate in the program, and 
further note that APHIS has long experience in inspecting plants abroad 
and at ports of arrival. They also believe the proposal would not 
result in a magnitude of imports that would overwhelm enforcement and 
inspection resources since observing APHIS requirements would be very 
expensive.

Choosing Which Genera To Import

    Several commenters stated that the five genera in the proposal were 
not chosen because they represent genera which pose the least risk if 
imported, but because they are the most economically attractive genera 
for importation.
    Response: Over the last 20 years, approximately 60 genera of plants 
in media have been requested for [[Page 3070]] importation into the 
United States by foreign governments. These are, of course, the genera 
the exporting countries especially desire to ship to the United States. 
It is APHIS policy to respond to such requests, regardless of their 
origin. We intend to consider all of the requested genera. However, as 
explained in the advance notice of proposed rulemaking published 
October 7, 1991 (56 FR 50523-50524, Docket No. 91-036), and in the 
proposed rule published September 7, 1993 (58 FR 47074-47084, Docket 
No. 89-154-1), we selected the five genera in the proposal for study 
first because they represent a diversity of horticultural and botanical 
types, and because they are among the first plants requested by foreign 
governments to be imported in growing media. These five genera were 
proposed for addition to the list of approved plants for importation in 
growing media because we found that they could be safely imported under 
specified safeguards without introducing exotic plant pests harmful to 
U.S. agriculture.
    In developing the list of pests to be studied for the five genera, 
we listed all pests reported on these hosts, whether or not we were 
familiar with their potential risk at that time. The list was developed 
without knowing the potential risk of each and every organism. All 
pests on the list were subjected to the pest risk analysis to determine 
which pests had a potential to be high risk based on the pest risk 
assessment standards. The high risk pests were subjected to detailed 
study, as described in the proposed rule.

Concern About Foreign Growers Observing Conditions

    Several commenters stated that the proposed growing restrictions 
will not be feasible for the foreign growers to observe, and they will, 
therefore, not observe them. These commenters also said that European 
growers cannot grow azaleas in the method prescribed by APHIS; instead, 
based on current practices, they would build a small greenhouse that 
meets the requirements for export plants, and then run tremendous 
numbers of plants through it illegally.
    Response: If restrictions are not feasible for any particular 
foreign growers, those foreign growers will not be approved to ship 
plants in media to the United States.
    Other commenters said that not all European growers will be careful 
in observing requirements, so some degree of unwanted pest 
contamination is inevitable for plants in growing media imported into 
the United States.
    Response: No human enterprise is without risk. However, we believe 
based on our research, and experience with similar potted plants, that 
the proposed four genera we are approving can be imported into the 
United States without significant risk, provided the required 
conditions are observed.

Regulations Should Include Consequences (Penalties) for Non-Compliance

    Some commenters believed that the risk of crop devastation or 
imposed quarantine destruction is a burden placed on U.S. importers and 
ultimately on the American taxpayer. They suggested that the 
regulations should spell out consequences and penalties for all 
domestic and foreign parties who fail to comply with regulatory 
requirements.
    Response: The consequences for non-compliance are elimination from 
the program for individual growers, shippers, or foreign countries. 
(See explanation under ``Concern about Foreign Growers Observing 
Conditions'' above.)
    Several commenters stated that importers should be held financially 
responsible for the risks of importation.
    Response: USDA has no authority to hold importers responsible for 
risks of importation; however, individual shipments will be refused 
entry unless the phytosanitary certificate required to accompany the 
shipment is endorsed by a Plant Protection and Quarantine inspector, as 
required by the regulation. This endorsement is based on monitoring 
inspections that show that the plants were grown under the requirements 
of the regulations. Also, if pests are found or other violations noted, 
individual shippers or greenhouse growers can be suspended from 
preclearance.
    Two commenters suggested that the regulations should suspend a 
producer from preclearance if a violation is found until the situation 
is corrected, and suspend the producer for at least 1 year if 
subsequent violations are found.
    Response: Because the required agreements allow cancellation by 
either party, APHIS has authority to suspend violators from 
preclearance. We intend to employ this cancellation authority in 
enforcement. We do not believe it is necessary to set specific time 
periods for the duration of a cancellation or suspension in order to 
use the tool effectively.

Limits on Methods To Control Pests Introduced Into the United States

    Several commenters stated that the U.S. Environmental Protection 
Agency (EPA) limits on use of some pesticides in the United States 
would make it impossible to use the most effective chemical controls to 
combat pests that could be introduced with the regulated articles.
    Response: If safeguards are observed, introductions of exotic pests 
with plants in media are extremely unlikely. No exotic pests have been 
detected in nearly 20 years of importations of plants in media from 
Europe and Israel. However, should new pests be introduced, their 
susceptibility to eradication or control will depend on the nature of 
the pest and the availability of control measures. It does not follow 
that because EPA action has resulted in loss of some chemical controls, 
that any new introduced pests could not be adequately controlled, 
chemically or otherwise.
    Several commenters were concerned that pests introduced by the 
regulated articles will require more domestic usage of allowed 
pesticides, which could pose a health risk.
    Response: We are concerned about possible health risks from the 
application of chemicals for quarantine purposes. However, we have no 
reason to believe that chemical controls applied in accordance with 
label requirements would present a health risk. The question of health 
risks from application of chemical pesticides is within the purview of 
the EPA and the Food and Drug Administration.
    Several commenters stated that we are potentially defenseless 
against pests that may have begun to develop genetic resistance to the 
more powerful controls that may be legal in exporting countries.
    Response: We would be glad to study evidence that pests in foreign 
countries have developed genetic resistance to pesticides not legal for 
use in the United States. However, if such resistance does occur, it 
does not mean that the pests would be resistant to pesticides that are 
legal for use in this country.

Growing Media Concerns

    Several commenters stated that pests and diseases can grow in the 
growing media currently allowed for the regulated articles.
    Response: We have no evidence that unused approved media is 
infested or infected with exotic plant pests. If prescribed safeguards 
are observed, such media used for approved plants will not become 
infested with exotic plant pests.
    One commenter suggested that the definition of ``media'' should not 
be changed from ``sterile'' to ``approved.''
    Response: There is no current definition of ``media'' as 
``sterile'' in this regulation. We made no proposal to 
[[Page 3071]] change the definition of ``media''. Therefore this 
comment is not germane to the proposal.
    One commenter suggested that Dutch and Israeli imports should be 
imported only in absolutely sterile media. This commenter stated that 
all kinds of weeds and diseases are imported into The Netherlands and 
handled there in ways that circumvent inspection or quarantine 
requirements theoretically designed to control the pests. The commenter 
also stated that sterile media is necessary for plants from Israel 
because desert weeds and diseases that occur there have not been 
identified or are not well known, but present risks.
    Response: We cannot respond since we have no evidence to support 
these claims, and the commenter did not provide evidence to support his 
claim.
    Several commenters stated that no plants in media should be allowed 
to be imported into the United States.
    Response: Certain plants are already enterable in media; we did not 
propose to change the entry status of those plants. This commenter did 
not explain why no plants in media should be allowed entry.

Anthurium Concerns

    Commenters opposed to allowing the importation of Anthurium species 
noted that the Anthurium industry in Hawaii has had to deal with 
introduction of Xanthomonas campestris pathovar dieffenbachiae with 
losses of $8.5 million. They stated that Hawaii is especially liable to 
new pest infestations, and that anthuriums are especially susceptible 
to new pests. They also stated that the scientific information on pests 
of anthuriums is probably not all inclusive because anthuriums have not 
been of great economic importance compared to other cut flowers.
    Response: The special vulnerability of Hawaii to tropical pests 
that do not survive well in most of the United States was considered by 
the pest risk analysis for anthuriums. During the analysis, Hawaii, 
Puerto Rico, California, and Florida were specifically considered and 
recognized as areas that needed special consideration due to their 
climate. We understand that the scientific information on pests of 
anthuriums, like most plants, is not all inclusive. We must use the 
best information available in making our decisions. The safeguards in 
the rule are deliberately broad to provide protection against a 
diversity of plant pests including those that were not identified.
    Several commenters stated that the proposed requirements were not 
fully adequate because the APHIS pest risk analysis states that for 
some plants, inspection at port of entry would not serve as an adequate 
safeguard since symptoms of significant diseases are not present during 
the incubation period.
    Response: As with other plants in media, the primary safeguards are 
those applied before and during growth in the foreign country. These 
safeguards are very strict because inspection at port of entry will not 
serve as an adequate safeguard for certain pests, either because of 
their size, or because symptoms are not present during the incubation 
period, or because pests would be hidden by the growing medium.
    Several commenters stated that the decision to import the five 
genera, especially Rhododendron, seems to go against the findings of 
the APHIS committee of researchers who prepared the worksheets and 
evaluations of pest risk (the Kahn report, made available through the 
proposed rule), which recommended against admitting Rhododendron due to 
pathogens in Europe, and raised concerns about other genera.
    Response: The function of the Kahn report was not to recommend that 
the genera under study be admitted or prohibited, but to identify the 
risks that would be associated with their admission. The Kahn report 
did identify significant risks that would be associated with 
unregulated admission of Rhododendron in growing media, and less 
significant risks regarding the other genera. APHIS evaluated those 
risks and tailored specific regulatory controls and safeguards to 
mitigate the risks in preparing the proposed rule. Since this final 
rule does not include importation for Rhododendron, a discussion of the 
efficacy of controls and requirements to mitigate risks associated with 
importation of Rhododendron will be deferred until such time as we 
publish further rulemaking for that genus.
    Some commenters stated that there is no reason to import the five 
genera, since production of the same genera or easily substitutable 
plants in the United States is more than adequate, and new varieties 
can be obtained by cuttings or tissue culture.
    Response: We have no authority to base a prohibition on the 
availability of plants in the United States. Any prohibition or 
restriction must be based on pest risk.

Previous Introductions of Serious Pests Into the United States

    Several commenters stated that a large number of pests have been 
introduced into the United States and have caused significant economic 
and environmental harm. They stated that many of these pests were 
introduced despite import controls believed to be as effective as the 
proposed regulations for plants in growing media. They believe that 
available and legal methods of control have proved inadequate to 
control most of these pests, and that the proposed regulations would 
only speed the introduction of more pests of this type. Examples of 
introduced pests cited by these commenters include Egyptian cotton 
moth, Asian gypsy moth, Geranium Xanthomonas bacterial blight, fire 
ants, Mexican fruit fly, Mediterranean fruit fly, honeybee tracheal 
mite, Narcissus bulb nematode, apple ermine moth, Varroa mite, azalea 
flower spot, chrysanthemum white rust, sweet potato white fly, Thrips 
palmi, lethal yellowing, Ganaderma zonaturum and Apopka weevil, 
Melaleuca, brown snails, zebra mussel, European gypsy moth, purple 
loosestrife, a Japanese weed (Phylanthese), TSWV virus (spread by 
thrips), serpentine leaf miner, Japanese beetles, golden nematode, 
black vine weevil, pine shoot beetle, Dutch elm disease, Chestnut 
blight, European pine shoot moth, apple maggot, oriental fruit moth, 
Caribbean fruit fly, citrus canker, citrus leafminer, black parlatoria 
scale, Diaprepes root weevil, stunt of Chrysanthemum, Cylindrocladium 
of azalea, Liriomyza trifolii, L. huidobrensis, Spodotera exigua, 
Frankliniella occidentalis, and Bemisia tabaci.
    Response: The majority of the organisms listed by these commenters 
are usually not found associated with plants in growing media of the 
genera proposed for importation. In some cases, such as apple maggot, 
Frankliniella occidentalis, and others, the pests are indigenous to 
North America. Several of the pests named, such as the Egyptian cotton 
moth, have not, in fact, become established even temporarily in the 
United States. Chestnut blight, European Gypsy Moth, and other 
introduced pests that did become established, did so prior to the 
establishment of Federal plant quarantines, and their presence does not 
support a charge that quarantine regulations are not effective. 
Melaleuca is a horticultural introduction only recently considered as a 
noxious weed; for many years, our regulatory programs did not attempt 
to restrict its importation. The honeybee tracheal mite, azalea flower 
spot, and other remaining pests are not likely to be associated with 
plants in growing media grown under the conditions in the proposal. 
[[Page 3072]] 
    We believe that the lack of quarantine significant introductions of 
any pests in association with the five taxa of plants currently allowed 
importation in growing media during the past 20 years is also evidence 
that pests are unlikely to be introduced in growing media imported 
under the proposed requirements.
    If safeguards are observed, no exotic pests should be introduced 
with the plants. We expect that APHIS and the foreign plant protection 
organization will apply adequate controls to ensure consistent and 
correct application of the safeguards.

Examples of Infected or Infested Stock That Has Been Imported

    One commenter reported he bought virus-infected geranium stock from 
the Canary Islands and Mexico. Another mentioned Fischer Geranium ISA 
voluntarily cancelling 80 million geranium cuttings from Mexico because 
of a possible virus disease that might infect other ornamentals. A 
commenter who imported plant cuttings from Israel said he had them 
inspected and released by APHIS but that a follow up inspection found 
Egyptian cotton moth, resulting in a $250,000 loss.
    A commenter stated he imported nursery stock from The Netherlands 
that turned out to be infested with the noxious weed ``keek,'' which 
could not be eradicated. Another cited growers who have been shut down 
because of imported products infested with Egyptian cotton moth and 
white rust of chrysanthemums. Another cited an importation of 
Alstroemeria plants from The Netherlands that had tomato spot wilt 
virus and were being distributed by a Dutch-American propagator.
    A commenter reports that mixed fern species arriving at Apopka were 
found with four different taxa of insects, and that undetermined 
species of both Aphelenchoides and Helicotylenchus were found in 
sterile peat imported from nurseries in The Netherlands.
    Another commenter reports that rootstocks from The Netherlands have 
been found to be infested with Meloidogyne and Pratylenchus species. 
Another commenter notes that the State of Oregon has found serious 
plant pests or diseases in imported pre-inspected plant materials.
    Response: While these comments document a general background risk 
that pests may be introduced into the United States, they do not 
provide evidence that the restrictions and safeguards discussed in the 
proposal for importing plants in media would fail to prevent 
introduction of pests. We continue to believe that the proposed 
restrictions and safeguards are effective, for the reasons discussed in 
the proposal.

Safeguard Concerns

    Several commenters suggest that the frequency and timing of 
inspections should be critically examined because pests may build up in 
a short time. Plant auctions and resale transactions would have to be 
policed to ensure that the plants were grown under qualifying 
conditions. These commenters also believe that APHIS must take steps to 
assure effective pest exclusion programs at ports of entry, and 
guarantee development and maintenance of programs to exclude and/or 
control pests.
    Several commenters suggested that APHIS should include provisions 
to limit numbers of plants imported. They felt limits on plant import 
numbers should relate to the known capacity of each exporting country 
to grow plants under approved conditions and should take account of the 
reasonably expected output for each growing facility.
    Response: Allocating resources to enforce regulations is an 
important part of any regulatory program, and APHIS intends to devote 
the resources required to ensure that inspections, record-keeping, port 
of arrival activities and other actions required under the regulations 
are maintained at the level required for successful implementation of 
this program.
    Regarding enforcement and verification of compliance with the 
regulations, all growers of plants in media to be shipped to the United 
States must keep records of kinds and numbers and time of shipment for 
all plants brought into, and shipped from, the greenhouse. These 
records must be made available to inspectors of APHIS and of the plant 
protection service of the foreign country. These records will also help 
ensure that the number of plants imported under the regulations does 
not exceed the number that could reasonably be grown in approved 
facilities. If more plants are imported than we believe could 
reasonably be grown in approved facilities, we will investigate 
possible violations.
    Unscheduled visits will be made to the approved greenhouses by 
inspectors of both APHIS and the plant protection services of the 
growing countries. In addition to monitoring the number of plants that 
can be shipped, the inspectors will enforce the very strict controls 
placed on the greenhouses, including automatic closing doors, 
screening, raised benches, etc.
    One commenter suggested that the lack of a protocol for detecting 
movement of plants from unapproved greenhouses through approved 
greenhouses and the lack of a quarantine period in the United States 
for imported material allow too great a risk of nondetection of pests.
    Response: The record-keeping and inspection requirements for 
growers discussed above address the problem of movements from 
unapproved greenhouses through approved greenhouses. In response to the 
quarantine period comment, APHIS requires postentry quarantine only 
when other import requirements cannot ensure the material is free from 
dangerous plant pests. The pest risk associated with the genera in 
growing media in the proposal can usually be addressed by other means. 
APHIS will propose postentry quarantine as a requirement to admit any 
plant in growing media when such a requirement is necessary; for 
example, the proposal includes postentry quarantine for Ananas and 
Nidularium imported into Hawaii.

Adequacy of Requirements for Growing Conditions in the Country of 
Origin

    Several commenters noted that pests may not be able to pass through 
the screens proposed for greenhouses, but other openings will let them 
in because greenhouses expand and contract and have small cracks and 
broken panes of glass.
    Response: In addition to specifying a required screen mesh size, 
the proposed regulations also rely on a performance standard for pest 
exclusion, which inspectors will enforce. The regulations require that 
the articles must be grown in a greenhouse ``in which sanitary 
procedures adequate to exclude plant pests and diseases are always 
employed'' (Sec. 319.37-8(e)(2)(ii)).
    One commenter questioned the proposed requirement that growing 
plants may be watered only with rainwater that has been boiled or 
pasteurized, with clean well water, or with potable water. Water fit 
for human consumption (potable water) may still contain plant pests or 
pathogens.
    Response: We believe that water that has been contaminated with 
organic material to the point that it harbors significant numbers of 
plant pests is also likely to harbor human disease pathogens that make 
it not potable. It therefore would not be allowed to be used by the 
regulations. Similarly, water that has been treated to render it 
potable has been exposed to chemicals or treatment conditions that will 
destroy human pathogens and plant pests alike.
    One commenter asked: What is clean rainwater? Can it be collected 
as runoff [[Page 3073]] from buildings, which may be contaminated? This 
commenter suggested that all irrigation water should be treated with 
ultraviolet irradiation or filtered to eliminate spread of pathogens.
    Response: Under the proposed requirement, if rainwater is used it 
must be boiled or pasteurized, which would destroy pathogens.
    Several commenters suggested that the height requirement for the 
raised growing benches is not sufficient to prevent something on the 
ground being spread by insects or by water splashing.
    Response: The benches are not raised over ``ground,'' but over 
concrete or gravel over plastic sheeting. The purpose of any elevation 
of the benches is to allow air circulation underneath, to separate the 
bench and its plants from the drainage off the bench, and to simplify 
cleaning and sanitation. The minimum height specified was necessary to 
accomplish these tasks. Some benches may use trickle irrigation for 
watering or contain approved growing media watered by a circulatory 
system. In either case there would be no splashing. If there were some 
splashing, there would be no soil that would serve as a source of 
contamination and spread. In addition, the height requirement for 
potted plants has been in effect for six different kinds of plants for 
about 20 years. No exotic pests have been found with shipments of these 
plants.
    Several commenters stated that pesticides in the growing facilities 
will keep infestations at a low level making visual inspection useless; 
pesticide use should be prohibited to avoid this problem of masking.
    Response: The use of pesticides and other safeguards, such as 
screens, are methods of reducing the risk of introducing exotic pests. 
We believe that the use of pesticides with other safeguards will result 
in a product that is essentially pest-free. Nineteen years of 
experience with six other genera of plants in growing media supports 
the concept of using multiple safeguards. This systems approach has 
long been used here and in foreign countries to reduce pest risk and to 
provide a horticultural product acceptable for domestic and 
international trade.

Other Safeguard Concerns

    Several commenters stated that they have visited growing facilities 
that are likely candidates for growing articles under the regulations, 
and stated that the physical and procedural safeguards required by the 
regulations are not in place.
    Response: Shipments from growing facilities may not begin until 
after the required growing agreements have been signed. APHIS will not 
sign an agreement until the required safeguards and procedures are in 
place.

Concerns About APHIS Resources

    Commenters raised the following questions and concerns about the 
level of APHIS resources for enforcing the proposed regulations: APHIS 
does not have adequate resources and commitment to fulfill its 
monitoring responsibility in foreign countries. The proposal has no 
specifications for APHIS funding or staffing for inspection of 
greenhouses, mother stock, and export plants. APHIS is understaffed and 
politically powerless as evidenced by problems with geraniums, 
poinsettia mildew, white rust, and the withdrawal from the U.S. market 
of Fisher Geraniums. APHIS does not have sufficient staff at ports of 
entry, as evidenced by unwanted pests that continue to be shipped in, 
e.g., Xanthomonas pelargonii and the cotton moth on geraniums. Budget 
cuts in USDA should prohibit any new products being considered for 
importation under the regulations. APHIS cannot control likely problems 
because USDA has been a primary target for budget reductions. It is 
inappropriate to propose additional importation of plant genera when 
many inspection positions at ports of entry are vacant. Current PPQ 
staffs are not able to adequately inspect and monitor disposition of 
imported plant materials. The APHIS Vision 2000 document projects 
continuing decreases in PPQ staff.
    Response: It is true that many variables in the annual budget 
process can affect the level of resources APHIS can apply to any given 
program at any given time. APHIS intends to manage its resources to 
allocate the necessary number of staff hours to this program to ensure 
the level of inspection and enforcement necessary for its safe 
operation. If at any time we are unable to provide the resources 
necessary for full implementation of the proposed requirements, we will 
discontinue or limit importations under the regulations. Our statutory 
authority allows us to take such action whenever it is necessary.
    Several State governments indicated their desire for a system by 
which APHIS would notify them of all importations destined for their 
States, especially since they believe USDA has no plans to increase 
port of entry inspection staff and may have to decrease current staff.
    Response: APHIS has a system to notify State Departments of 
Agriculture of the arrival in the United States of plants destined for 
their States. Any State may request and receive notification from APHIS 
of the arrival of plants imported in accordance with these regulations.

Pest Risk Analysis Methodology

    Some commenters believed the database of pest/host information 
APHIS assembled in the course of pest risk assessment was too narrow 
and exclusive. Several felt that because the automated databases 
employed do not contain reports from before 1970, applicable historical 
information about possible pest risks was not included. Two commenters 
cited specific pests that were not identified by the database 
(pathogens from Israel and Egyptian cotton moth) and stated that these 
pests should have been considered in evaluating the proposed 
importations.
    Some commenters felt that published reports of pests associated 
with particular plant articles are an insufficient source of data for 
pest risk decisionmaking. One stated that ignoring a pathogen until it 
does enough damage to be noticed in research articles does not ensure 
safety of our agriculture; we can't assume an organism is not of 
quarantine significance only because there is little or no economic 
damage or biological information or data published in scientific 
journals. Another stated that a lack of information in scientific 
papers on a particular pest does not constitute proof that there is no 
problem with that pest. Another cited the comparative paucity of 
reports in the scientific and regulatory literature of pests in Asia 
and parts of Europe as a sign that the database employed by the 
regulations is incomplete.
    Response: The scientist obtained an excellent coverage of the 
worlds' scientific literature by using the data bases in their search 
for literature. In addition, PPQ furnished copies of important papers 
for use in the assessment. Furthermore, scientists had the option to 
consult the references to older papers that are found at the end of the 
scientific articles that appear after 1970. The outside scientists had 
their own references and their University libraries as well.
    We agree that the pest and potential host data employed were not 
and cannot be comprehensive. However, we believe the database assembled 
the best feasible collection of data relevant to the decisionmaking 
process required for the proposal of regulations. To address the fact 
that unknown or underreported [[Page 3074]] pests no doubt exist, and 
could be associated with some of the articles proposed for importation, 
the growing requirements and safeguards are deliberately broad. The 
safeguards address fundamental modes of pest access to hosts and 
survivability of pests on hosts. The safeguards that control known 
pests should also be widely effective in controlling unknown pests, and 
pests that are not known to be associated with the particular articles 
covered by the regulations.
    Several commenters stated that the plant industry has a right to 
expect that the United States government will obtain sufficient 
information on potential problems and establish adequate safeguards 
before allowing entry of foreign plant material. They stated that it is 
not acceptable to remove existing safeguards in order to facilitate 
trade simply because ``no information is available'' in the database 
searches employed by APHIS. These commenters felt that whenever there 
are risks associated with importing a plant article, importation should 
be prohibited in accordance with the Plant Quarantine Act, unless 
definitive scientific evidence exists that the article may be safely 
imported under safeguards.
    Response: The Plant Quarantine Act does not prohibit the 
importation of any plants. However, it authorizes the Secretary of 
Agriculture to determine that it is necessary to forbid the importation 
of plants in order to prevent the introduction of plant diseases and 
injurious insects from infested countries.
    Many years ago, a general prohibition was promulgated against the 
importation of plants in growing media, with certain exceptions. It 
appears this prohibition was based on the idea that growing media in 
general may contain many kinds of plant pests, and that elimination of 
those pests by inspection or treatment was not feasible.
    The exceptions were made because APHIS found that certain plants in 
growing media could be safely imported into the United States. The 
exceptions that existed before 1980 included, for example, plants from 
most of Canada, and orchid plants on fern bark slabs. These exceptions 
were made using the best information available to APHIS, and we have no 
information that the plants present any significant risk of introducing 
exotic plant pests. In 1980, we added five kinds of plants in growing 
media that could be imported, provided that strict quarantine 
conditions were observed. The plants were requested by various European 
countries and some U.S. importers. The proposal to allow importation of 
these plants in growing media was based on the best information 
available to us at that time, which indicated the plants could be 
safely imported. The validity of allowing these plants in media to be 
imported is supported by the fact that many such plants have been 
imported without any evidence of introducing exotic plant pests.
    Now we have proposed to add five new kinds of plants established in 
growing media. This final rule allows importation of four of the 
proposed genera. Again, we have used the best information available, 
which includes nearly 20 years of experience with potted plants from 
The Netherlands to determine that the genera of plants may be imported 
without significant pest risk, if the proposed conditions are observed.
    Several commenters stated that since many fungi and other pests are 
not well known, it is impossible to determine when a new strain of a 
pest is being introduced with a newly allowed host. These commenters 
opposed increasing the variety of plants imported in growing media for 
this reason.
    Response: The commenters should note that the plants we are 
allowing to be imported may already be imported bare-rooted, and 
therefore do not represent new types of host material. Certainly, 
allowing the host material to be imported associated with growing media 
presents some risks not presented by bare-rooted plants. However, the 
risk analyses acknowledged the existence of unknown fungi and other 
pests, and evaluated the likely scope of the risk they present by using 
risks of known fungi and other pests as benchmarks.
    Several commenters suggested that the pest risk analysis was weak 
because the outside scientists who assisted in studying the risks were 
not in a position to review recommended safeguards and analyze their 
efficacy.
    Response: We deliberately asked the researchers to evaluate the 
pest risks without regard to particular potential inspections, 
treatments, or other safeguards that might be imposed by APHIS. We did 
this to obtain an unbiased baseline of pest risk potential, and because 
we were employing the researchers to evaluate pest risks, not the 
efficacy of a variety of treatments and safeguards. The selection of 
particular treatment or safeguard requirements is a regulatory 
decision, not a scientific one.
    Several commenters felt that the proposed rule shows that APHIS 
apparently ignored the findings of its own scientists and team of 
outside experts, who in the Kahn report identified major risks for 
importation of Rhododendron and significant risks for other genera.
    Response: The Kahn report identified risks, but did not address 
whether some feasible combination of safeguards could control those 
risks. APHIS has extensive program operations experience and methods 
development data that document which safeguards can be used to control 
particular types of risks. APHIS evaluated the risks identified in the 
Kahn report and concluded that import requirements and safeguards of 
proven effectiveness could be employed to reduce those risks to a safe 
level.
    The statement that APHIS ignored the results of its own scientists 
is misleading. There were two groups. One group was charged with pest 
risk analysis to determine the potential risk of each organisms 
assuming the only safeguard in place was inspection of a sample at a 
port of entry. The reason for this specification was to allow outside 
scientists to make biological assessments without being encumbered with 
quarantine procedures. The thrust was toward determining the potential 
risk based on life cycles-a biological assessment where the true or 
projected risk may be determined.
    Under those circumstances, it is not surprising that based on the 
life cycles of the most important exotic pests, that the recommendation 
was to prohibit Rhododendron. The scientist believed that inspection at 
a port of entry, as a sole safeguard, is not an adequate safeguard to 
prevent the entry of Rhododendron pests.
    However, the commenter did not consider the actions of the second 
group, which was charged with risk management. The second group 
considered all the hazardous and high risk plant pests listed by the 
scientists in the first group and set up a system of independent 
safeguards listed in the proposed rule. The whole proposed rule is 
equal to the sum of its parts--risk assessment and risk management.

Other Pest Risk Analysis Methodology Concerns

    Commenters made the following suggestions: Pest risk analyses done 
by APHIS should consider fewer plants at a time. APHIS should expand 
the coverage of the analyses to ensure including the pests that pose 
the greatest risk. APHIS should add an additional criterion to its risk 
assessment standards to measure quality, depth, and coverage of 
available information on a given genus.
    Response: We conducted a pest risk analysis for each of five genera 
of plants. [[Page 3075]] We believe that the various species within 
each genus have sufficient similarities in terms of pest host potential 
to make this a reasonable approach. We believe the analyses did address 
the pests posing the greatest risk, and we are not aware of a 
statistical model that demonstrates otherwise. We believe rating 
quality, depth, and coverage of available information on a given genus 
is best done by professional judgment of qualified plant scientists, 
not by a formula, and this is the approach we used.

Preemption and Other Concerns of States

    One commenter expressed concern about the preemption clause that 
would prevent Hawaii from enforcing its statutes to protect Hawaiian 
agriculture. This commenter stated that Hawaii is unique in having a 
higher probability of pests becoming established, due to its climate. 
The commenter believes APHIS should clarify at what point foreign 
commerce ceases, especially as to whether affected States will be able 
to participate in the decisionmaking or whether States will simply be 
notified of the final decision.
    Response: The extent to which this regulation would preempt State 
or local requirements is no more or less than with our other 
regulations. Federal regulations would preempt State or local 
requirements only when they are inconsistent with the Federal 
requirement. Federal requirements preempt State or local requirements 
while the articles are in foreign commerce, which generally lasts at 
least until the article is purchased by the ultimate user and taken to 
its final destination.
    Several commenters stated that the proposed changes would increase 
pressure on the California Department of Food and Agriculture for 
subsequent detection of pests after release by APHIS.
    Response: The rule was designed to prevent the introduction of 
pests, not to discover them after importation. We believe that articles 
imported in accordance with the requirements of the regulations will 
contain few or no significant plant pests, and should therefore require 
little increase in the workload for the plant protection services of 
California or other States.

Economic Concerns

    A number of commenters raised concerns about the preliminary 
economic analysis and suggested ways to improve it. The analysis has 
been revised to address impacts on both wholesale and retail firms, to 
utilize up-to-date data, and to address other concerns of commenters. 
See the ``Executive Order 12866 and Regulatory Flexibility Act'' 
section of this document.
    Some commenters thought that the economic analysis should take into 
account the potential cost should dangerous pests be introduced and 
cause major infestations.
    Response: We think the economic analysis should focus on the 
expected effects of the proposed action, and should rely as far as 
possible on data that are known or can be reasonably extrapolated. 
Although it is possible to assume that a pest introduction will occur 
despite strict regulatory requirements, and to endow the introduced 
pest with the capability to cause any degree of harm to U.S. plants, 
this type of speculation does not seem to us to have much value in the 
absence of any real data. We based the economic analysis on what we 
believe to be the effects of the regulations, based on past experience 
and study of the proposed action. The expected effects include 
importation of a modest amount of plant material, without the 
introduction and establishment of serious plant pests.

Other Policy Issues

    One commenter stated that the APHIS mandate is to protect our 
environment and not to foster foreign trade.
    Response: Regulatory actions by APHIS may have positive or negative 
effects on foreign trade, and we are required to analyze those likely 
effects and make the analysis available to the public. However, we do 
not base our import regulations on their possible effect on trade, but 
on analysis of whether articles may be imported with an insignificant 
risk of the introduction of plant pests.
    Several commenters stated that this proposal sets a precedent that 
will allow many other, more dangerous plants to be imported in media.
    Response: The precedent for importing plants in growing media from 
other than Canada was set in 1980, when five kinds of plants were 
allowed importation in accordance with Sec. 319.37-8(e). APHIS intends 
to propose allowing the importation of additional requested plants when 
it finds the plants can be imported without significant risk of 
introducing exotic plant pests. APHIS also intends to prohibit (or 
continue prohibiting) those plants it finds can not be imported without 
a significant risk of introducing exotic plant pests.
    One commenter stated that APHIS must endeavor to ensure that no 
pest of any plant is introduced; only after doing this can APHIS make 
adjustments to promote free trade.
    Response: APHIS has no authority to prohibit the importation of 
plants in order to ``ensure that no pest of any plant is introduced''. 
Rather, the Plant Quarantine Act gives us authority to prohibit the 
importation of plants into the United States ``in order to prevent the 
introduction into the United States of any tree, plant, or fruit 
disease or of any injurious insect, new to or not theretofore widely 
prevalent or distributed within and throughout the United States'' 
(emphasis added).

Endangered Species Concerns

    Several commenters noted that an endangered Rhododendron species in 
the United States might be damaged by alien pests introduced on 
imported Rhododendron. Some commenters further argued that other plant 
and tree species that are currently listed, or that are candidates for 
listing, could be harmed by pests brought in with the five genera 
proposed for importation.
    Response: We will consult with the Fish and Wildlife Service under 
the Endangered Species Act prior to taking final action on the proposal 
for Rhododendron. Regarding the other genera, no commenter provided 
information linking their importation to any specific risk to a 
domestic species that is listed or a formal candidate for listing under 
the Endangered Species Act.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been determined to be economically significant, and 
was reviewed by OMB under Executive Order 12866.
    The composite effect of this rulemaking and several anticipated 
related rulemakings over the next several years, which could result in 
allowing importation of over 60 genera of plants in growing media that 
are currently prohibited, could have effects on U.S.-foreign 
competition that are within the scope of the definition of economically 
significant in Executive Order 12866.
    We have prepared a final Regulatory Impact Analysis (RIA) and a 
final Regulatory Flexibility Analysis (RFA) concerning the current 
final rule and future rules allowing the importation of additional 
plants in growing media. The exact content of future rules to be 
proposed in this area, including the final list of plants to be allowed 
entry established in growing media, will not be known until APHIS 
completes pest risk analysis and decision-making processes necessary 
for the development [[Page 3076]] of these proposed rules. Therefore, 
the final RIA and RFA take a broad approach and make certain necessary 
assumptions in order to form an estimate of economic effects. The RIA 
and RFA assume that APHIS will propose to allow entry of all plants in 
growing media for which we have received requests for entry, and make 
generic assumptions about safeguards and precautionary procedures that 
may be required for entry of some genera. However, it is unlikely that 
APHIS, after conducting pest risk analyses, will propose to allow entry 
of all requested plants. In addition, the safeguards and precautionary 
procedures necessary for safe entry of some genera will be developed 
and refined later in the rule development process. Therefore, the RIA 
and RFA will be continually updated and refined as choices are made and 
rulemaking advances, to incorporate more precise information on the 
costs, benefits, and other economic effects associated with rulemaking 
decisions.
    The current version of the RIA and RFA addresses potential impacts 
of possible future actions in general terms, and addresses the impacts 
of adding the genera and requirements discussed by this proposed rule 
more specifically. Copies of the RIA and RFA may be obtained by sending 
a written request to the Chief, Regulatory Analysis and Development, 
PPD, APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738.
    This final rule will allow importation of articles of the genera 
Alstroemeria, Ananas, Anthurium, and Nidularium that meet the 
requirements of the regulations. We anticipate that this change would 
have the following economic implications. Allowing entry of additional 
genera would enhance consumer purchasing power (consumer surplus). 
Foreign producers would be able to market their plants in the U.S. 
market. This will likely decrease domestic prices for the four genera, 
and will enable U.S. consumers to purchase a wider variety of potted 
plants at lower prices.
    Given prevailing price discrepancies between domestic and foreign 
plant markets, revenue for domestic producers will likely decrease 
slightly as a result of freer trade in the four genera affected by this 
proposal. The exact amount of decrease will be determined by demand 
elasticities for potted plants. The net impact to society would be 
positive since consumer gains will more than offset losses incurred by 
domestic producers.
    Based on florist and nursery sales, the estimated value of potted 
Alstroemeria, Ananas, Anthurium, and Nidularium production in the 
United States totals about $1.4 million annually. This represents less 
than one percent of the total annual value of the domestic nursery and 
floriculture industry, estimated at about $8.9 billion. Allowing 
imports of these potted plant genera could cause some domestic 
producers to switch to growing other plant genera.
    Utilizing available production and price data, low and high impact 
scenarios we developed to estimate potential changes in net U.S. 
welfare from Anthurium imports. This study assumes that prices will 
drop by 10 and 30 percent in the low and high impact scenarios 
respectively. A unitary supply elasticity and three demand elasticities 
(-0.5, -1, and -1.5) were used to estimate a range of potential net 
impacts for both scenarios.
    Consumers and domestic importers of Alstroemeria, Ananas, and 
Nidularium will also benefit from the rule's impact. The revisions will 
increase the availability of the three genera in the U.S. market. 
However, APHIS was not able to quantify the impact on the domestic 
market for Alstroemeria, Ananas, and Nidularium. These three genera are 
produced by a handful of small producers and data is not published to 
avoid disclosing proprietary information.
    The low impact scenario indicates that the rule's revisions will 
increase net welfare for U.S. society by between $7,000 and $20,000. 
Domestic consumers of Anthurium will incur welfare gains of between 
$137,000 and $143,000. By contrast, U.S. Anthurium producers will incur 
welfare losses totaling between $123,000 and $130,000.
    When prices are reduced by 30 percent net welfare is increased by 
between $183,000 and $283,000. Consumer welfare is increased by between 
$430,000 and $490,000, and producer welfare is decreased by between 
$207,000 and $246,000.
    Information contained in the ``Census of Horticultural Specialties 
(1988)''<SUP>1 can be used to segment domestic nurseries by value of 
annual sales. Value of annual sales was used as a guide in determining 
which nurseries would qualify as a ``small'' business. Additionally, 
the Small Business Administration (SBA) has established guidelines for 
determining which economic entities meet the definition of a ``small'' 
entity.

    \1\ Limitations of data: The Census of Horticultural Specialties 
(1988) does not represent all producers of horticultural specialty 
products in 1988. Because the census was voluntary, it only 
represents those growers in 1987 who cooperated and provided 
information on their activities for 1988. In addition, it includes 
2,829 additional growers enumerated in 28 States by the National 
Agricultural Statistics Service (NASS).
---------------------------------------------------------------------------

    The four genera are produced by about 79 domestic producers. 
Nurseries with annual sales of $3.5 million or less are considered 
``small'' for purposes of this analysis. Annual receipts of less than 
$3.5 million is the standard used for all industries not specifically 
listed by the SBA. All of the 79 commercial nurseries are small 
according to the above criteria.\2\ These nurseries are diversified 
operations that produce many varieties of potted plants and other 
greenhouse products. The nature of their business requires nurseries to 
make frequent adjustments to the types of plants they grow and sell, as 
new types become popular and public taste changes. If producing the 
four genera becomes unprofitable, these nurseries should be able to 
defray losses by shifting to other, more profitable product lines. 
Therefore, the Agency anticipates that the revisions will not have a 
significant economic impact on a substantial number of small producers.

    \2\U.S. Department of Commerce; ``Census of Horticultural 
Specialties (1988)''; Washington, DC. Information was not available 
for Alstroemeria, Ananas, and Nidularium due to proprietary 
concerns.
---------------------------------------------------------------------------

    The SBA definition of a small business engaged in the import/export 
business is one that employs no more than 100 employees. The number of 
firms that may be qualified as a small business under this definition 
cannot be determined. Small importers will likely benefit from the rule 
change. The regulatory revisions will enable some small importers to 
enhance their income through imports of the four genera in growing 
media.
    Small retailers will benefit from importation of Alstroemeria, 
Ananas, Anthurium, and Nidularium in growing media. The rule will 
enhance the availability and quality of potted plants in the U.S. 
market. Plant retailers will benefit from lower wholesale prices and 
will likely pass these savings on to their customers. This will 
increase annual sales volume and revenue.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This final rule will allow Alstroemeria, Ananas, 
Anthurium, and [[Page 3077]] Nidularium established in growing media to 
be imported into the United States from any country that meets the 
requirements of Sec. 319.37-8(e). Under this rule, State and local laws 
and regulations regarding articles imported will be preempted while the 
articles are in foreign commerce. Some nursery stock articles are 
imported for immediate distribution and sale to the public, and remain 
in foreign commerce until sold to the ultimate consumer. The question 
of when foreign commerce ceases in other cases must be addressed on a 
case-by-case basis. This final rule has no retroactive effect, and will 
not require administrative proceedings before parties may file suit in 
court.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The assessment provides a basis 
for the conclusion that the importation in growing media of the four 
genera of plants covered by the rule, under the conditions specified in 
the rule, would not present a risk of introducing or disseminating 
plant pests and would not have a significant impact on the quality of 
the human environment. Based on the finding of no significant impact, 
the Administrator of the Animal and Plant Health Inspection Service has 
determined that an environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.); (2) Regulations of the 
Council on Environmental Quality for Implementing the Procedural 
Provisions of NEPA (40 CFR Parts 1500-1508); (3) USDA Regulations 
Implementing NEPA (7 CFR part 1b); and (4) APHIS Guidelines 
Implementing NEPA (44 FR 50381-50384, August 28, 1979, and 44 FR 51272-
51274, August 31, 1979).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection at USDA, room 
1141, South Building, 14th Street and Independence Avenue SW., 
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, 
except holidays. In addition, copies may be obtained by writing to the 
individual listed under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    This document contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1980 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 319

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

PART 319--FOREIGN QUARANTINE NOTICES

    Accordingly, 7 CFR part 319 is amended as follows:
    1. The authority citation for part 319 continues to read as 
follows:

    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450; 21 U.S.C. 
136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).

    2. In Sec. 319.37-1, the following definitions are added in 
alphabetical order:


Sec. 319.37-1  Definitions.

* * * * *
    Clean well water. Well water that does not contain plant pathogens 
or other plant pests.
* * * * *
    Potable water. Water which is approved for drinking purposes by the 
national or local health authority having jurisdiction.
* * * * *
    3. In Sec. 319.37-13, footnote 11 and the reference to it are 
redesignated as footnote 12.
    4. In Sec. 319.37-8, paragraph (e) is revised and paragraph (g) is 
added to read as follows:


Sec. 319.37-8  Growing media.

* * * * *
    (e) A restricted article of any of the following groups of plants 
may be imported established in an approved growing medium listed in 
this paragraph, if the article meets the conditions of this paragraph, 
and is accompanied by a phytosanitary certificate issued by the plant 
protection service of the country in which the article was grown that 
declares that the article meets the conditions of this paragraph: 
Alstroemeria, Ananas,<SUP>11 Anthurium, Begonia, Gloxinia (= 
Sinningia), Nidularium,<SUP>11 Peperomia, Polypodiophyta (=Filicales) 
(ferns), and Saintpaulia.

    \11\These articles are bromeliads, and if imported into Hawaii, 
bromeliads are subject to postentry quarantine in accordance with 
Sec. 319.37-7.
---------------------------------------------------------------------------

    (1) Approved growing media are baked expanded clay pellets, cork, 
glass wool, organic and inorganic fibers, peat, perlite, polymer 
stabilized starch, plastic particles, phenol formaldehyde, 
polyethylene, polystyrene, polyurethane, rock wool, sphagnum moss, 
ureaformaldehyde, vermiculite, or volcanic rock, or any combination of 
these media. Growing media must not have been previously used.
    (2) Articles imported under this paragraph must be grown in 
compliance with a written agreement for enforcement of this section 
signed by the plant protection service of the country where grown and 
Plant Protection and Quarantine, must be developed from mother stock 
that was inspected and found free from evidence of disease and pests by 
an APHIS inspector or foreign plant protection service inspector no 
more than 60 days prior to the time the article is established in the 
greenhouse (except for articles developed from seeds germinated in the 
greenhouse), and must be:
    (i) Grown in compliance with a written agreement between the grower 
and the plant protection service of the country where the article is 
grown, in which the grower agrees to comply with the provisions of this 
section and to allow inspectors, and representatives of the plant 
protection service of the country where the article is grown, access to 
the growing facility as necessary to monitor compliance with the 
provisions of this section;
    (ii) Grown solely in a greenhouse in which sanitary procedures 
adequate to exclude plant pests and diseases are always employed, 
including cleaning and disinfection of floors, benches and tools, and 
the application of measures to protect against any injurious plant 
diseases, injurious insect pests, and other plant pests. The greenhouse 
must be free from sand and soil and must have screening with openings 
of not more than 0.6 mm on all vents and openings except entryways. All 
entryways must be equipped with automatic closing doors;
    (iii) Rooted and grown in an active state of foliar growth for at 
least four consecutive months immediately prior to importation into the 
United States, in a greenhouse unit that is used solely for articles 
grown in compliance with this paragraph;
    (iv) Grown from seeds germinated in the greenhouse unit; or 
descended from a mother plant that was grown for at least 9 months in 
the exporting country prior to importation into the United States of 
the descendent plants, provided that if the mother plant was imported 
into the exporting country from another country, it must be:
    (A) Grown for at least 12 months in the exporting country prior to 
importation of the descendent plants into the United States, or
    (B) Treated at the time of importation into the exporting country 
with a [[Page 3078]] treatment prescribed for pests of that plant by 
the plant protection service of the exporting country and then grown 
for at least 9 months in the exporting country prior to importation of 
the descendent plants into the United States;
    (v) Watered only with rainwater that has been boiled or 
pasteurized, with clean well water, or with potable water;
    (vi) Rooted and grown in approved growing media listed in 
Sec. 319.37-8(e)(1) on benches supported by legs and raised at least 46 
cm above the floor;
    (vii) Stored and packaged only in areas free of sand, soil, earth, 
and plant pests; and,
    (viii) Inspected in the greenhouse and found free from evidence of 
plant pests and diseases by an APHIS inspector or an inspector of the 
plant protection service of the exporting country, no more than 30 days 
prior to the date of export to the United States.
* * * * *
    (g) Pest risk evaluation standards for plants established in 
growing media. When evaluating a request to allow importation of 
additional taxa of plants established in growing media, the Animal and 
Plant Health Inspection Service will conduct the following analysis in 
determining the pest risks associated with each requested plant article 
and in determining whether or not to propose allowing importation into 
the United States of the requested plant article.
    (1) Collect commodity information.
    (i) Determine the kind of growing medium, origin and taxon of the 
regulated article.
    (ii) Collect information on the method of preparing the regulated 
article for importation.
    (iii) Evaluate history of past plant pest interceptions or 
introductions (including data from plant protection services of foreign 
countries) associated with each regulated article.
    (2) Catalog quarantine pests. For the regulated article specified 
in an application, determine what plant pests or potential plant pests 
are associated with the type of plant from which the regulated article 
was derived, in the country and locality of origin. A plant pest that 
meets one of the following criteria is a quarantine pest and will be 
further evaluated in accordance with paragraph (g)(3) of this section:
    (i) Non-indigenous plant pest not present in the United States;
    (ii) Non-indigenous plant pest, present in the United States and 
capable of further dissemination in the United States;
    (iii) Non-indigenous plant pest that is present in the United 
States and has reached probable limits of its ecological range, but 
differs genetically from the plant pest in the United States in a way 
that demonstrates a potential for greater damage potential in the 
United States;
    (iv) Native species of the United States that has reached probable 
limits of its ecological range, but differs genetically from the plant 
pest in the United States in a way that demonstrates a potential for 
greater damage potential in the United States; or
    (v) Non-indigenous or native plant pest that may be able to vector 
another plant pest that meets one of the criteria in (g)(2)(i) through 
(iv) of this section.
    (3) Conduct individual pest risk assessments. Each of the 
quarantine pests identified by application of the criteria in paragraph 
(g)(2) of this section will be evaluated based on the following 
estimates:
    (i) Estimate the probability the quarantine pest will be on, with, 
or in the regulated article at the time of importation;
    (ii) Estimate the probability the quarantine pest will survive in 
transit on the regulated article and enter the United States 
undetected;
    (iii) Estimate the probability of the quarantine pest colonizing 
once entered into the United States;
    (iv) Estimate the probability of the quarantine pest spreading 
beyond the colonized area; and
    (v) Estimate the actual and perceived economic, environmental and 
social damage that would occur if the quarantine pest is introduced, 
colonizes, and spreads.
    (4) Determine overall estimation of risk based on compilation of 
component estimates. This step will evaluate whether the pest risk of 
importing a regulated article established in growing media, as 
developed through the estimates of paragraph (g)(3) of this section, is 
greater than the pest risk of importing the regulated article with bare 
roots as allowed by Sec. 319.37-8(a).
    (i) If the pest risk is determined to be the same or less, the 
regulated article established in growing media will be allowed 
importation under the same conditions as the same regulated article 
with bare roots.
    (ii) If the pest risk is determined to be greater for the regulated 
article established in growing media, APHIS will evaluate available 
mitigation measures to determine whether they would allow safe 
importation of the regulated article. Mitigation measures currently in 
use as requirements of this subsection, and any other mitigation 
methods relevant to the regulated article and plant pests involved, 
will be compared with the individual pest risk assessments in order to 
determine whether requiring particular mitigation measures in 
connection with importation of the regulated article would reduce the 
pest risk to a level equal to or less than the risk associated with 
importing the regulated article with bare roots as allowed by 
Sec. 319.37-8(a). If APHIS determines that use of particular mitigation 
measures could reduce the pest risk to this level, and determines that 
sufficient APHIS resources are available to implement or ensure 
implementation of the appropriate mitigation measures, APHIS will 
propose to allow importation into the United States of the requested 
regulated article if the appropriate mitigation measures are employed.


Sec. 319.37-9   [Amended]

    5. In Sec. 319.37-9, the phrase ``is not intermixed with other 
approved packing material;'' is removed.


    Done in Washington, DC, this 9th day of January 1995.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-935 Filed 1-12-95; 8:45 am]
BILLING CODE 3410-34-P