[Federal Register Volume 69, Number 79 (Friday, April 23, 2004)]
[Rules and Regulations]
[Pages 21941-21947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9262]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 69, No. 79 / Friday, April 23, 2004 / Rules 
and Regulations  

[[Page 21941]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 03-019-2]


Certification Program for Imported Articles of Pelargonium spp. 
and Solanum spp. To Prevent Introduction of Potato Brown Rot

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: We are amending the regulations to establish a certification 
program for articles of Pelargonium spp. and Solanum spp. imported from 
countries where the bacterium Ralstonia solanacearum race 3 biovar 2 is 
known to occur. The requirements of the certification program are 
designed to ensure that Ralstonia solanacearum race 3 biovar 2 will not 
be introduced into the United States through the importation of 
articles of Pelargonium spp. and Solanum spp. We have determined that 
the restrictions presently in place do not adequately mitigate the risk 
that imported articles of Pelargonium spp. and Solanum spp. could 
introduce this bacterial strain, which causes potato brown rot, into 
the United States. This action is necessary to prevent the introduction 
of this bacterial strain into the United States.

DATES: This interim rule is effective May 24, 2004. We will consider 
all comments that we receive on or before June 22, 2004.

ADDRESSES: You may submit comments by any of the following methods:
     Postal Mail/Commercial Delivery: Please send 
four copies of your comment (an original and three copies) to Docket 
No. 03-019-2, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 03-019-2.
     E-mail: Address your comment to 
[email protected]. Your comment must be contained in the body 
of your message; do not send attached files. Please include your name 
and address in your message and ``Docket No. 03-019-2'' on the subject 
line.
     Agency Web site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to 
submit an e-mail comment through the APHIS Web site.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne Burnett, Senior Import 
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of certain plants and plant products into the United States 
to prevent the introduction of plant pests. The regulations contained 
in ``Subpart--Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other 
Plant Products,'' Sec. Sec.  319.37 through 319.37-14 (referred to 
below as the regulations), restrict, among other things, the 
importation of living plants, plant parts, seeds, and plant cuttings 
for propagation.
    In an interim rule effective May 16, 2003, and published in the 
Federal Register on May 23, 2003 (68 FR 28115-28119, Docket No. 03-019-
1), we amended the regulations by requiring an additional declaration 
on the phytosanitary certificates that must accompany all articles of 
Pelargonium spp. and Solanum spp. imported into the United States. 
(Articles of Pelargonium spp. and Solanum spp. imported under the 
Canadian greenhouse-grown restricted plant program, which are not 
required to be accompanied by a phytosanitary certificate when they are 
offered for importation into the United States, are exempt from this 
requirement.) The interim rule was necessary because recent 
introductions of Ralstonia solanacearum race 3 biovar 2, the bacterium 
that causes potato brown rot, had shown that articles of Pelargonium 
spp. and Solanum spp. can serve as vectors for its transmission. The 
additional declaration required by the interim rule must state either 
that the articles of Pelargonium spp. and Solanum spp. were produced in 
a production site that has been tested and found to be free of R. 
solanacearum race 3 biovar 2 or that R. solanacearum race 3 biovar 2 is 
not known to occur in the region in which the articles were produced.
    Comments on the interim rule were required to be received on or 
before July 22, 2003. We received four comments by that date, from 
representatives of industry associations and from a State government. 
All of the commenters supported the interim rule. Three of the 
commenters asked the Animal and Plant Health Inspection Service (APHIS) 
to take additional steps to ensure that imported articles of 
Pelargonium spp. and Solanum spp. do not introduce R. solanacearum race 
3 biovar 2 into the United States.
    Two of these commenters urged APHIS to develop a certification 
program for foreign production sites in countries where R. solanacearum 
race 3 biovar 2 is known to occur that wish to export articles of 
Pelargonium spp. and Solanum spp. to the United States. These 
commenters stated that such a program would greatly reduce the risk of 
introducing R. solanacearum race 3 biovar 2 into the United States via 
imported articles of Pelargonium spp. and Solanum spp. We agree with 
these

[[Page 21942]]

commenters. In addition, since our May 2003 interim rule became 
effective, we have encountered several difficulties that have 
demonstrated to us that we need to implement a certification program 
immediately.
    As we discussed in the first interim rule, race 3 of the bacterium 
R. solanacearum affects the potato (Solanum tuberosum L.) and causes 
potato brown rot. This race of the bacterium is widely distributed in 
temperate areas of the world, including some parts of the United 
States. It causes potatoes to rot, making them unusable and seriously 
affecting potato yields. The bacterium is extremely difficult to 
eradicate both because of its many alternate hosts and because of its 
ability to survive in water. Letting an infected field lie fallow or 
using alternate, non-potato crops for a growing season is not 
effective, as the bacterium survives in various common weeds, including 
Solanum species such as nightshade. The bacterium can also be 
transmitted from infected fields to other fields by streams and runoff.
    At least three biovars of R. solanacearum race 3 are distinguished 
on the basis of biochemical properties. Biovar 1, which is currently 
established in the United States, does not tolerate cold temperatures; 
its establishment is thus limited to the southern part of the United 
States. However, biovar 2, which is not present in the United States, 
is adapted to low temperatures and is found in temperate zones, meaning 
that it could thrive in the northern States where most U.S. potatoes 
are produced. If R. solanacearum race 3 biovar 2 were to become 
established in the United States, it would likely have a devastating 
impact on potato production.
    Biovar 1 is currently established in the United States, and we have 
not established an official control program for it. Therefore, in 
accordance with international trade agreements, we do not place 
restrictions on the importation of articles that may be infected with 
biovar 1. Biovar 2, however, is not established in the United States 
and is considered a pest of quarantine significance. Therefore, under 
those same international agreements, we are free to place restrictions 
on the importation of articles that may be infected with biovar 2.
    One approach to preventing the entry of R. solanacearum race 3 
biovar 2 would be to test articles of Pelargonium spp. and Solanum spp. 
that are offered for importation into the United States at the port of 
entry. For such an approach to be effective, our tests would need to be 
able to distinguish between the biovars of the bacterium and to 
identify the presence of R. solanacearum race 3 biovar 2. However, 
there currently exists no standalone, specific test for R. solanacearum 
race 3 biovar 2 that is practical for testing articles of Pelargonium 
spp. and Solanum spp. at ports of entry. Therefore, our May 2003 
interim rule required that the phytosanitary certificate accompanying 
imported articles of Pelargonium spp. and Solanum spp. contain an 
additional declaration either that the articles were produced in a 
production site that has been tested and found to be free of R. 
solanacearum race 3 biovar 2, which we believed would be effective due 
to the fact that production sites can be effectively tested for the 
bacterium, or that R. solanacearum race 3 biovar 2 is not known to 
occur in the region in which the articles were produced.
    At the time our May 2003 interim rule became effective, an 
emergency program had been initiated to identify and destroy plants in 
the United States that tested positive for infection with R. 
solanacearum race 3 biovar 2. This program was initiated in February 
2003 after R. solanacearum race 3 biovar 2 was detected at nursery 
facilities that had received geraniums from Kenya. The emergency 
program, which continued beyond the effective date of the interim rule, 
eradicated the bacterium within the United States. We believe that some 
of the plants we identified as infected during this effort entered the 
United States after the effective date of the interim rule, meaning 
that the additional declarations required by the interim rule do not 
provide adequate protection against the risk of introduction of R. 
solanacearum race 3 biovar 2 into the United States. It is clear that 
additional steps should be taken to prevent the introduction of this 
dangerous bacterium.
    Therefore, in this interim rule, we are adding a certification 
program that must be implemented at production sites in countries where 
R. solanacearum race 3 biovar 2 is known to occur that produce articles 
of Pelargonium spp. and Solanum spp. to be offered for importation into 
the United States.

Certification Program for Production Sites

    In this interim rule, we are amending the regulations to require 
that articles of Pelargonium spp. and Solanum spp. grown in countries 
where R. solanacearum race 3 biovar 2 is known to occur be produced in 
accordance with the requirements in Sec.  319.37-5(r)(3), as revised by 
this interim rule, to be eligible for importation into the United 
States.
    These requirements are designed to ensure that even if R. 
solanacearum race 3 biovar 2 is present in the environment surrounding 
the production site in which the articles of Pelargonium spp. or 
Solanum spp. are produced, the bacterium will not enter the production 
site. Registration and certification of production sites will allow us 
to determine the production site from which any imported articles of 
Pelargonium spp. and Solanum spp. originated. This will facilitate 
monitoring of the program and allow for quicker reactions to any 
problems we detect. Ongoing monitoring is also prescribed to ensure 
that the certification program is properly implemented and fully 
effective. The requirements of this certification program, contained in 
Sec.  319.37-5(r)(3), are described below.
     The national plant protection organization of 
the country in which the articles are produced (the NPPO) must enter 
into a bilateral workplan with APHIS. This bilateral workplan must set 
out conditions for monitoring the production of articles of Pelargonium 
spp. and Solanum spp., for enforcement of the requirements in this 
interim rule, and for the establishment of a trust fund.
     The production site where the articles of 
Pelargonium spp. and Solanum spp. intended for export to the United 
States are produced must be registered with and certified by both APHIS 
and the NPPO. As part of the certification process, production sites 
must be initially approved and thereafter visited at least once a year 
by APHIS and the NPPO to verify compliance with the requirements of 
this interim rule.
     The production site must conduct ongoing testing 
for R. solanacearum race 3 biovar 2. Only those articles of Pelargonium 
spp. or Solanum spp. that have been tested with negative results for 
the presence of R. solanacearum race 3 biovar 2 may be used in 
production and export. Records of the testing must be kept for two 
growing seasons and made available to representatives of APHIS and of 
the NPPO. All testing procedures must be approved by APHIS.
    We are currently aware of two acceptable methods for testing 
production facilities: An enzyme-linked immunosorbent assay (ELISA), 
which can confirm that no Ralstonia spp. bacteria are present, and a 
polymerase chain reaction (PCR) test that can confirm that no R. 
solanacearum race 3 biovar 2 bacteria are present. Domestic greenhouses 
tested for R. solanacearum race 3 biovar 2 during the recent 
eradication effort typically used ELISA

[[Page 21943]]

to screen potentially symptomatic material; if the material was 
infected with Ralstonia spp., the PCR test was used to determine 
whether R. solanacearum race 3 biovar 2 was present. Other testing 
methods may be used if APHIS determines that those methods are adequate 
to confirm that production facilities are free of R. solanacearum race 
3 biovar 2.
     The production site must be constructed in a 
manner that ensures that outside water cannot enter the production 
site. The production site must be surrounded by a 1-meter buffer that 
is sloped so that water drains away from the production site.
     Dicotyledonous weeds must be controlled both 
within the production site and around it. The production site and the 
1-meter buffer surrounding the production site must be free of 
dicotyledonous weeds.
     All equipment that comes in contact with 
articles of Pelargonium spp. or Solanum spp. within the production site 
must be adequately sanitized so that R. solanacearum race 3 biovar 2 
cannot be transmitted between plants or enter from outside the 
production site via the equipment.
     Production site personnel must adequately 
sanitize their clothing and shoes and wash their hands before entering 
the production site to prevent the entry of R. solanacearum race 3 
biovar 2 into the production site.
     Growing media for articles of Pelargonium spp. 
and Solanum spp. must be free of R. solanacearum race 3 biovar 2. 
Growing media and containers for articles of Pelargonium spp. and 
Solanum spp. must not come in contact with soil, and soil may not be 
used as a growing medium.
     Water used in maintenance of the plants at the 
production site must be free of R. solanacearum race 3 biovar 2. The 
production site must either derive the water from an APHIS-approved 
source or treat the water with an APHIS-approved treatment before use.
     Growing media at the production site must not 
come in direct contact with any water source, such as an emitter or a 
hose end. If a drip irrigation system is used, backflow devices must be 
installed to prevent any R. solanacearum race 3 biovar 2 that may be 
present from spreading to the rest of the production site through the 
irrigation system. Ebb and flow irrigation may not be used.
     Production site personnel must be educated 
regarding the various pathways through which R. solanacearum race 3 
biovar 2 can be introduced into a production site and must be trained 
to recognize symptoms of R. solanacearum race 3 biovar 2 infection in 
articles of Pelargonium spp. or Solanum spp. in the production site.
    Articles of Pelargonium spp. or Solanum spp. produced for export 
within an approved production site must be handled and packed in a 
manner adequate to prevent the presence of R. solanacearum race 3 
biovar 2. The articles must be labeled with information indicating the 
production site from which the articles originated.
     If R. solanacearum race 3 biovar 2 is found in 
the production site or in consignments from the production site, the 
production site will be ineligible to export articles of Pelargonium 
spp. or Solanum spp. to the United States. A production site may be 
reinstated if a reinspection reveals that the site is free of R. 
solanacearum race 3 biovar 2 and all problems in the production site 
have been addressed and corrected to the satisfaction of APHIS.
     The phytosanitary certificate of inspection 
required by Sec.  319.37-4 that accompanies these articles must contain 
an additional declaration that states ``These articles have been 
produced in accordance with the requirements in 7 CFR 319.37-5(r)(3).''
     The government of the country in which the 
articles are produced must enter into a trust fund agreement with APHIS 
before each growing season. The government of the country in which the 
articles are produced or its designated representative is required to 
pay in advance all estimated costs that APHIS expects to incur through 
its involvement in overseeing the execution of the requirements of 
Sec.  319.37-5(r)(3). These costs will include administrative expenses 
incurred in conducting the services enumerated in Sec.  319.37-5(r)(3) 
and all salaries (including overtime and the Federal share of employee 
benefits), travel expenses (including per diem expenses), and other 
incidental expenses incurred by the inspectors in performing these 
services. (Specific provisions for making payments to this trust fund 
may be found in the rule portion of this document.)
    We believe the additional requirements in this certification 
program will prevent the introduction of R. solanacearum race 3 biovar 
2 into the United States while allowing the continued importation of 
articles of Pelargonium spp. and Solanum spp.

Other Comments

    One commenter suggested that we consider requiring importers of 
articles of Pelargonium spp. and Solanum spp. to post a bond, which 
would be used to reimburse domestic growers who may be adversely 
affected by the introduction of R. solanacearum race 3 biovar 2 via 
such articles. We believe that the certification program we are 
establishing in this interim rule is a more direct and more effective 
means of ensuring that articles of Pelargonium spp. and Solanum spp. 
that are offered for importation will not serve as a pathway for the 
introduction of R. solanacearum race 3 biovar 2.
    Two commenters urged APHIS to continue with its review of the 
nursery stock regulations, to prevent introductions of both R. 
solanacearum race 3 biovar 2 and other plant pests. We agree that this 
review is essential to safeguarding plant health, and we will continue 
our work on it.

Other Changes

    As discussed above, our May 2003 interim rule required that the 
phytosanitary certificate accompanying all articles of Pelargonium spp. 
and Solanum spp. from countries where R. solanacearum race 3 biovar 2 
is not known to occur contain an additional declaration to that effect. 
In this interim rule, we are amending the regulations established by 
the May 2003 interim rule to exempt articles of Solanum spp. from 
Canada from this requirement. Canada is the only country in which R. 
solanacearum race 3 biovar 2 is not known to occur that is currently 
eligible to export articles of Solanum spp. to the United States; the 
importation of articles of Solanum spp. from all other countries where 
R. solanacearum race 3 biovar 2 is not known to occur is prohibited in 
Sec.  319.37-2(a), due to risks posed by other plant pests. Therefore, 
the burden of the requirement for the additional declaration on the 
phytosanitary certificate accompanying articles of Solanum spp. from 
countries where R. solanacearum race 3 biovar 2 is not known to occur 
has fallen solely on Canadian exporters of these articles. We do not 
believe requiring the additional declaration for articles of Solanum 
spp. exported from Canada provides additional protection against the 
introduction of R. solanacearum race 3 biovar 2. Therefore, this 
interim rule provides an exemption from that requirement for those 
articles.
    The regulations established by our May 2003 interim rule referred 
to ``production facilities'' where articles were produced for export to 
the United States. The term we typically use to refer to such entities 
is ``production site,'' so we have amended the provisions established 
in our May 2003 interim rule so that they now refer to ``production 
sites'' rather than ``production facilities.'' In addition, we

[[Page 21944]]

have added a definition of the term production site to Sec.  319.37-1, 
i.e.: ``A defined portion of a place of production utilized for the 
production of a commodity that is managed separately for phytosanitary 
purposes. This may include the entire place of production or portions 
of it. Examples of portions of places of production are a defined 
orchard, grove, field, greenhouse, screenhouse, or premises.'' This is 
the same definition we provide in Sec.  319.56-1 of our fruits and 
vegetables regulations, except that we have added greenhouse and 
screenhouse to the list of examples. We believe this change will 
improve the clarity of the regulations.
    In addition, we have made several editorial changes to the 
provisions established by our May 2003 interim rule:
     The original regulations referred to ``regions'' 
where R. solanacearum race 3 biovar 2 is not known to occur. The 
preferred term in this context is ``country.'' We use the term 
``country'' in revised Sec.  319.37-5(r).
     The additional declaration required by the 
original Sec.  319.37-5(r)(2) was required to read ``Ralstonia 
solanacearum race 3 biovar 2 is not known to occur in the country of 
origin of the articles in this shipment.'' To be consistent with the 
phrasing of other, similar additional declarations in the regulations, 
we have shortened this to read ``Ralstonia solanacearum race 3 biovar 2 
is not known to occur in the country of origin'' in this interim rule.
     We had referred in the original Sec.  319.37-
5(r)(2) and (r)(3) to R. solanacearum race 3 biovar 2 either being 
known or not known to occur in the country of origin ``at the time of 
arrival at the port of first arrival in the United States.'' We do not 
believe this language is necessary to ensure phytosanitary security; if 
a consignment of articles was shipped to the United States from a 
country where R. solanacearum race 3 biovar 2 was not known to occur, 
but where the bacterium was found while the articles were in transit, 
we would use our authority under the Plant Protection Act to prevent 
the entry of the articles. Thus, we have omitted that language in 
revised Sec.  319.37-5(r).
     We had used the term ``plants'' in the 
additional declaration required by the original Sec.  319.37-5(r)(3), 
rather than the term ``articles,'' which is the term we used elsewhere 
in the regulatory text. This interim rule corrects that error.

Immediate Action

    Immediate action is necessary to prevent the importation of 
articles of Pelargonium spp. and Solanum spp. that come from countries 
where R. solanacearum race 3 biovar 2 is known to occur and that have 
been produced in production sites that may not be free of that 
bacterium. Because the importation of these articles may serve as a 
pathway for the introduction of R. solanacearum race 3 biovar 2 into 
the United States, and because the existing restrictions do not 
adequately mitigate the risk that imported articles of Pelargonium spp. 
and Solanum spp. that are infected with R. solanacearum race 3 biovar 2 
could introduce this bacterial strain into the United States, allowing 
the importation of these articles to continue without further 
restrictions would pose an unacceptable risk of introducing R. 
solanacearum race 3 biovar 2 into the United States.
    This rule is being made effective 30 days after publication because 
importers, exporters, NPPOs, and others will need 30 days to prepare 
for the changes in operations that will become necessary on the 
effective date of this rule. Because prior notice and other public 
procedures with respect to this action are impracticable and contrary 
to the public interest under these circumstances, we find good cause 
under 5 U.S.C. 553 to make this rule effective 30 days after 
publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    In this interim rule, APHIS is amending the regulations to 
establish a certification program for articles of Pelargonium spp. and 
Solanum spp. imported from countries where the bacterium Ralstonia 
solanacearum race 3 biovar 2 is known to occur. The requirements of the 
certification program are designed to ensure that Ralstonia 
solanacearum race 3 biovar 2 will not be introduced into the United 
States through the importation of articles of Pelargonium spp. and 
Solanum spp. APHIS has determined that the restrictions presently in 
place do not adequately mitigate the risk that imported articles of 
Pelargonium spp. and Solanum spp. could introduce this bacterial 
strain, which causes potato brown rot, into the United States. This 
action is necessary to prevent the introduction of this bacterial 
strain into the United States.
    The production site certification program will impact approximately 
11 different nurseries. Two of these nurseries are located in 
Guatemala, three in Mexico, one in China, two in Kenya, and three in 
Costa Rica. The average cost of upgrading these 11 production sites to 
comply with the production site requirements in this interim rule has 
been estimated at approximately $70,000 per site.\1\ However, many of 
these production sites have already upgraded their facilities due to 
the outbreak of R. solanacearum race 3 biovar 2 in early 2003. Thus, to 
the extent that these upgrades fulfill the production site requirements 
contained in this rule, compliance costs for some production sites 
would be lower than this estimate.
---------------------------------------------------------------------------

    \1\ Society of American Florists.
---------------------------------------------------------------------------

Pelargonium (geranium) spp.

    Based on growers' receipts, U.S. floriculture and nursery crop 
sales totaled $14 billion in 2002. Total sales of U.S. geraniums were 
estimated at $204 million for 2002.\2\ The United States imported $44 
million worth of cuttings and slips of which geraniums comprised some 
unknown part.\3\ Geraniums are the most popular bedding plant in North 
America; approximately 20,000 growers cultivate these plants.
---------------------------------------------------------------------------

    \2\ Electronic Outlook Report from the Economic Research 
Service, Floriculture and Nursery Crops Outlook, September 12, 2002, 
Alberto Jerardo.
    \3\ World Trade Atlas 2002, U.S. imports of unrooted cuttings 
and slips of plants, code  0602100000.
---------------------------------------------------------------------------

    APHIS has determined that the 2003 R. solanacearum race 3 biovar 2 
outbreak occurred when geranium cuttings arrived from Kenya carrying 
the R. solanacearum race 3 biovar 2 bacterium. The R. solanacearum race 
3 biovar 2 outbreak in 2003 led to the disposal of 1.9 million 
geraniums; the disposed plants had a total value of approximately $1.5 
to $2 million.

Solanum spp.

    The genus Solanum comprises a large group of both tender and hardy, 
herbaceous shrubby climbing plants. Several species can be found in 
North America either growing wild or as decorative plants, but two--
potatoes and eggplants--are grown as vegetables. The R. solanacearum 
race 3 biovar 2 bacterium, which is widely distributed

[[Page 21945]]

in temperate regions, causes the disease potato brown rot. In 2002, 1.3 
million acres of U.S. potatoes were harvested; the potato harvest was 
valued at $3.2 billion, and $123 million worth of U.S. potatoes were 
exported to the rest of the world.\4\ The value of potato fields 
infected with R. solanacearum race 3 biovar 2 could be drastically 
reduced if not completely eliminated. The bacterium causes potatoes to 
have unsightly brown rings in the vegetable, making them worthless for 
human consumption. Most likely, U.S. producers with fields infected 
with this bacterium would be required to quarantine their fields and 
destroy the potatoes to prevent the spread of the disease.
---------------------------------------------------------------------------

    \4\ National Agricultural Statistical Service (NASS) data on 
U.S. potato production, 2002; Foreign Agricultural Service data on 
potato exports, 2002.
---------------------------------------------------------------------------

    The United Kingdom has experienced five outbreaks of potato brown 
rot that have caused minor impacts to overall potato production.\5\ 
Certain areas in South America have seen potato losses from 5 percent 
to 100 percent due to potato brown rot. If potato brown rot were to 
become established in the United States, the potato industry could 
potentially lose hundreds of millions of dollars due to direct losses 
and indirect losses from quarantines and diminished export markets.
---------------------------------------------------------------------------

    \5\ British Department of Environment, Food and Rural Affairs, 
Service Delivery Unit, Plant Health Division.
---------------------------------------------------------------------------

    This interim rule will allow imports of articles of Pelargonium 
spp. and Solanum spp. to continue as long as the articles have been 
produced in accordance with the certification program requirements in 
Sec.  319.37-5(r)(3) and are accompanied by a phytosanitary certificate 
stating that they have been produced in accordance with these 
requirements. This interim rule will help safeguard U.S. agriculture 
against the possible introduction of R. solanacearum race 3 biovar 2.

Impact on Small Entities

    The Regulatory Flexibility Act requires that APHIS consider the 
economic impact of its rules on small entities. The Small Business 
Administration (SBA) classifies nursery and tree production businesses 
as small entities (North American Industry Classification System 
category 111421) if their annual sales receipts are $750,000 or less. 
In 2001, 1,691 floriculture operations out of a total of 10,965 
operations had sales of $500,000 or more.\6\ Therefore, at least 85 
percent of all floriculture operations can be classified as small; it 
is likely that an even higher percentage can be classified as small due 
to the $250,000 discrepancy.
---------------------------------------------------------------------------

    \6\ NASS, Agricultural Statistics Board, U.S. Department of 
Agriculture, 2001 Floriculture Crops.
---------------------------------------------------------------------------

    The costs of complying with the production site certification 
requirements are not expected to significantly affect costs or revenues 
of small-entity floriculture operators in the United States. Some 
portion of the cost of site certification may be passed onto U.S. 
buyers of geranium cuttings in the form of higher prices, but this 
effect is expected to be minor.
    The rule will have a negative impact on offshore operations due to 
the costs involved in complying with the additional nursery site 
certification requirements. Experts in the industry have estimated that 
updating the 11 offshore nursery sites will cost approximately $770,000 
total, or $70,000 per site. It is difficult to determine the impact 
without knowing average revenues generated at these 11 nursery sites.
    While the costs for production sites to comply with the 
requirements will result in a negative impact on offshore production 
sites, the requirements will help ensure that future nursery shipments 
entering the United States are free of R. solanacearum race 3 biovar 2. 
The 2003 R. solanacearum race 3 biovar 2 outbreak alone cost the 
floriculture industry $1.5 to $2 million in geranium plant losses. The 
R. solanacearum race 3 biovar 2 outbreak could have jeopardized not 
only the entire U.S. geranium industry, which is estimated to be worth 
$204 million per year, but also the potato industry, which is estimated 
to be worth $3.2 billion per year, if it had not been contained and 
eradicated.\7\ It is evident that the potential benefits of certifying 
offshore production sites that produce Pelargonium spp. and Solanum 
spp. outweigh the costs.
---------------------------------------------------------------------------

    \7\ Electronic Outlook Report from the Economic Service, 
Floriculture and Nursery Crops Outlook, September 12th, 2002, 
Alberto Jerardo; and NASS data U.S. potato production, 2002, along 
with FAS data on potato exports 2002.
---------------------------------------------------------------------------

    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 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(j) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection and 
recordkeeping requirements included in this interim rule have been 
submitted for emergency approval to the Office of Management and Budget 
(OMB). OMB has assigned control number 0579-0246 to the information 
collection and recordkeeping requirements.
    We plan to request continuation of that approval for 3 years. 
Please send written comments on the 3-year approval request to the 
following addresses: (1) Office of Information and Regulatory Affairs, 
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) 
Docket No. 03-019-2, Regulatory Analysis and Development, PPD, APHIS, 
Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. 
Please state that your comments refer to Docket No. 03-019-2 and send 
your comments within 60 days of publication of this rule.
    This interim rule establishes a certification program for articles 
of Pelargonium spp. and Solanum spp. imported from countries where the 
bacterium Ralstonia solanacearum race 3 biovar 2 is known to occur. In 
order to comply with the requirements of the certification program, 
exporting production sites and importers will need to obtain the 
necessary additional declaration on the phytosanitary certificate 
accompanying the imported articles of Pelargonium spp. and Solanum spp. 
and submit documentation for the compliance agreement and trust fund 
required by this interim rule. We are soliciting comments from the 
public (as well as affected agencies) concerning our information 
collection and recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic,

[[Page 21946]]

mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.5049 hours per response.
    Respondents: Growers and State plant regulatory officials.
    Estimated annual number of respondents: 15.
    Estimated annual number of responses per respondent: 67.33.
    Estimated annual number of responses: 1,010.
    Estimated total annual burden on respondents: 510 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this interim rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

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

0
Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.


0
2. In Sec.  319.37-1, a new definition of production site is added in 
alphabetical order to read as follows:


Sec.  319.37-1  Definitions.

* * * * *
    Production site. A defined portion of a place of production 
utilized for the production of a commodity that is managed separately 
for phytosanitary purposes. This may include the entire place of 
production or portions of it. Examples of portions of places of 
production are a defined orchard, grove, field, greenhouse, 
screenhouse, or premises.
* * * * *

0
3. In Sec.  319.37-5, paragraph (r) and the OMB control number citation 
at the end of the section are revised to read as follows:


Sec.  319.37-5  Special foreign inspection and certification 
requirements.

* * * * *
    (r) Any restricted article of Pelargonium spp. or Solanum spp. 
presented for importation into the United States may not be imported 
unless it meets the following requirements:
    (1) Any restricted article of Pelargonium spp. or Solanum spp. 
imported from Canada under the provisions of the greenhouse-grown 
restricted plant program as described in Sec.  319.37-4(c) must be 
presented for importation at the port of first arrival in the United 
States with a certificate of inspection in the form of a label in 
accordance with Sec.  319.37-4(c)(1)(iv).
    (2) For any article of Pelargonium spp. or Solanum spp. that does 
not meet the requirements of paragraph (r)(1) of this section and is 
from a country where Ralstonia solanacearum race 3 biovar 2 is not 
known to occur, the phytosanitary certificate of inspection required by 
Sec.  319.37-4 must contain an additional declaration that states 
``Ralstonia solanacearum race 3 biovar 2 is not known to occur in the 
country of origin''; Provided, that this additional declaration is not 
required on the phytosanitary certificate of inspection accompanying 
articles of Solanum spp. from Canada that do not meet the requirements 
of paragraph (r)(1) of this section.
    (3) Any article of Pelargonium spp. or Solanum spp. that is from a 
country where Ralstonia solanacearum race 3 biovar 2 is known to occur 
must meet the following requirements:
    (i) The national plant protection organization of the country in 
which the articles are produced (the NPPO) must have entered into a 
bilateral workplan with APHIS. This bilateral workplan must set out 
conditions for monitoring the production of articles of Pelargonium 
spp. and Solanum spp., for enforcement of the requirements of this 
paragraph (r)(3), and for the establishment of a trust fund as provided 
for in paragraph (r)(3)(xv) of this section.
    (ii) The production site where the articles of Pelargonium spp. and 
Solanum spp. intended for export to the United States are produced must 
be registered with and certified by both APHIS and the NPPO. As part of 
the certification process, production sites must be initially approved 
and thereafter visited at least once a year by APHIS and the NPPO to 
verify compliance with the requirements of this paragraph (r)(3).
    (iii) The production site must conduct ongoing testing for R. 
solanacearum race 3 biovar 2. Only those articles of Pelargonium spp. 
or Solanum spp. that have been tested with negative results for the 
presence of R. solanacearum race 3 biovar 2 may be used in production 
and export. Records of the testing must be kept for two growing seasons 
and made available to representatives of APHIS and of the NPPO. All 
testing procedures must be approved by APHIS.
    (iv) The production site must be constructed in a manner that 
ensures that outside water cannot enter the production site. The 
production site must be surrounded by a 1-meter buffer that is sloped 
so that water drains away from the production site.
    (v) Dicotyledonous weeds must be controlled both within the 
production site and around it. The production site and the 1-meter 
buffer surrounding the production site must be free of dicotyledonous 
weeds.
    (vi) All equipment that comes in contact with articles of 
Pelargonium spp. or Solanum spp. within the production site must be 
adequately sanitized so that R. solanacearum race 3 biovar 2 cannot be 
transmitted between plants or enter from outside the production site 
via the equipment.
    (vii) Production site personnel must adequately sanitize their 
clothing and shoes and wash their hands before entering the production 
site to prevent the entry of R. solanacearum race 3 biovar 2 into the 
production site.
    (viii) Growing media for articles of Pelargonium spp. and Solanum 
spp. must be free of R. solanacearum race 3 biovar 2. Growing media and 
containers for articles of Pelargonium spp. and Solanum spp. must not 
come in contact with soil, and soil may not be used as a growing 
medium.
    (ix) Water used in maintenance of the plants at the production site 
must be free of R. solanacearum race 3 biovar 2. The production site 
must either derive the water from an APHIS-approved source or treat the 
water with an APHIS-approved treatment before use.
    (x) Growing media at the production site must not come in direct 
contact with any water source, such as an

[[Page 21947]]

emitter or a hose end. If a drip irrigation system is used, backflow 
devices must be installed to prevent any R. solanacearum race 3 biovar 
2 that may be present from spreading to the rest of the production site 
through the irrigation system. Ebb and flow irrigation may not be used.
    (xi) Production site personnel must be educated regarding the 
various pathways through which R. solanacearum race 3 biovar 2 can be 
introduced into a production site and must be trained to recognize 
symptoms of R. solanacearum race 3 biovar 2 infection in articles of 
Pelargonium spp. or Solanum spp. in the production site.
    (xii) Articles of Pelargonium spp. or Solanum spp. produced for 
export within an approved production site must be handled and packed in 
a manner adequate to prevent the presence of R. solanacearum race 3 
biovar 2. The articles must be labeled with information indicating the 
production site from which the articles originated.
    (xiii) If R. solanacearum race 3 biovar 2 is found in the 
production site or in consignments from the production site, the 
production site will be ineligible to export articles of Pelargonium 
spp. or Solanum spp. to the United States. A production site may be 
reinstated if a reinspection reveals that the production site is free 
of R. solanacearum race 3 biovar 2 and all problems in the production 
site have been addressed and corrected to the satisfaction of APHIS.
    (xiv) The phytosanitary certificate of inspection required by Sec.  
319.37-4 that accompanies these articles must contain an additional 
declaration that states ``These articles have been produced in 
accordance with the requirements in 7 CFR 319.37-5(r)(3).''
    (xv) The government of the country in which the articles are 
produced must enter into a trust fund agreement with APHIS before each 
growing season. The government of the country in which the articles are 
produced or its designated representative is required to pay in advance 
all estimated costs that APHIS expects to incur through its involvement 
in overseeing the execution of paragraph (r)(3) of this section. These 
costs will include administrative expenses incurred in conducting the 
services enumerated in paragraph (r)(3) of this section and all 
salaries (including overtime and the Federal share of employee 
benefits), travel expenses (including per diem expenses), and other 
incidental expenses incurred by the inspectors in performing these 
services. The government of the country in which the articles are 
produced or its designated representative is required to deposit a 
certified or cashier's check with APHIS for the amount of the costs 
estimated by APHIS. If the deposit is not sufficient to meet all costs 
incurred by APHIS, the agreement further requires the government of the 
country in which the articles are produced or its designated 
representative to deposit with APHIS a certified or cashier's check for 
the amount of the remaining costs, as determined by APHIS, before the 
services will be completed. After a final audit at the conclusion of 
each shipping season, any overpayment of funds would be returned to the 
government of the country in which the articles are produced or its 
designated representative or held on account until needed.

(Approved by the Office of Management and Budget under control 
numbers 0579-0049, 0579-0176, 0579-0221, and 0579-0246.)

    Done in Washington, DC, this 20th day of April, 2004.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-9262 Filed 4-22-04; 8:45 am]
BILLING CODE 3410-34-P