[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 67581-67583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28404]



 ========================================================================
 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. 76, No. 212 / Wednesday, November 2, 2011 / 
Rules and Regulations  

[[Page 67581]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2010-0005]
RIN 0579-AD36


Importation of Bromeliad Plants in Growing Media From Belgium, 
Denmark, and the Netherlands

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

SUMMARY: We are amending the regulations governing the importation of 
plants and plant products to add Bromeliad plants of the genera 
Aechmea, Cryptanthus, Guzmania, Hohenbergia, Neoregelia, Tillandsia, 
and Vriesea from Belgium, Denmark, and the Netherlands to the list of 
plants that may be imported into the United States in an approved 
growing medium, subject to specified growing, inspection, and 
certification requirements. We are taking this action in response to 
requests from those three countries and after determining that the 
plants can be imported, under certain conditions, without resulting in 
the introduction into, or the dissemination within, the United States 
of a plant pest or noxious weed.

DATES: Effective Date: December 2, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. William Aley, Senior Import 
Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 
River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-5057.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation into the United States of certain plants and plant products 
to prevent the introduction of plant pests and noxious weeds. The 
regulations in ``Subpart--Plants for Planting,'' Sec. Sec.  319.37 
through 319.37-14 (referred to below as the regulations) contain, among 
other things, prohibitions and restrictions on the importation of 
plants, plant parts, and seeds for propagation.
    Paragraph (a) of Sec.  319.37-8 requires, with certain exceptions, 
that plants offered for importation into the United States be free of 
sand, soil, earth, and other growing media. This requirement is 
intended to help prevent the introduction of plant pests that might be 
present in the growing media; the exceptions to the requirement take 
into account factors that mitigate that plant pest risk. Those 
exceptions, which are found in paragraphs (b) through (e) of Sec.  
319.37-8, consider either the origin of the plants and growing media 
(paragraph (b)), the nature of the growing media (paragraphs (c) and 
(d)), or the use of a combination of growing conditions, approved 
media, inspections, and other requirements (paragraph (e)).
    Paragraph (e) of Sec.  319.37-8 provides conditions under which 
certain plants established in growing media may be imported into the 
United States. In addition to specifying the types of plants that may 
be imported, Sec.  319.37-8(e) also, among other things, specifies the 
types of growing media that may be used.
    On March 15, 2011, we published in the Federal Register (76 FR 
13890-13892, Docket No. APHIS-2010-0005) a proposal \1\ to amend the 
regulations governing the importation of plants and plant products to 
add Bromeliad plants of the genera Aechmea, Cryptanthus, Guzmania, 
Hohenbergia, Neoregelia, Tillandsia, and Vriesea from Belgium, Denmark, 
and the Netherlands to the list of plants that may be imported into the 
United States in an approved growing medium, subject to specified 
growing, inspection, and certification requirements. The Animal and 
Plant Health Inspection Service (APHIS) took this action in response to 
requests from those three countries and after determining that the 
plants could be imported, under certain conditions, without resulting 
in the introduction into, or the dissemination within, the United 
States of a plant pest or noxious weed.
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0005.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
May 16, 2011. We received eight comments by that date. They were from a 
domestic grower, a domestic growers' association, a State Government, 
and two foreign exporters. They are discussed below by topic.
    The comment from the domestic growers' association focused on the 
possible economic impacts of the proposed rule on domestic importers 
and growers of Bromeliads. The commenter stated that in the initial 
regulatory flexibility analysis (IRFA) that we made available to the 
public along with the proposed rule, we underestimated both the number 
of domestic nurseries that import Bromeliad plants from Belgium, 
Denmark, and the Netherlands and the potential economic impact on those 
nurseries. Noting that in the IRFA, we acknowledged the possibility 
that a few nurseries could be affected by the proposed rule to the 
extent that they would be eliminated from the marketing chain, the 
commenter stated that we neglected to consider the direct and indirect 
economic impacts that the closure of such nurseries could have on local 
economies due to the loss of jobs.
    We appreciate the additional information submitted by the commenter 
on the potential economic effects of the rule for Florida nurseries. We 
acknowledged in the IRFA that we did not know exactly how many U.S. 
nurseries import Bromeliad plants from Belgium, Denmark, and the 
Netherlands, but estimated their number to be no more than three. Based 
upon a survey it conducted in April 2011, the association represented 
by the commenter found that there are seven such nurseries in the State 
of Florida. We agree that these are businesses that will be directly 
affected by the rule.
    We also agree with the commenter that not only the nurseries that 
have been importing Bromeliad plants from Belgium, Denmark, and the 
Netherlands, but any nurseries that sell these plants may be affected 
by the rule. Importation of Bromeliad plants in growing media can be 
expected to alter some marketing channels, with retailers able to buy 
mature plants directly from European suppliers rather than rely on

[[Page 67582]]

the maturation of the plants at Florida nurseries.
    The commenter stated that the Florida nurseries surveyed by the 
growers' association represented by the commenter (respondents included 
both domestic importers of Bromeliads and domestic Bromeliad producers) 
expected to lose as much as $6.8 million in Bromeliad plant sales (28.5 
percent of their market) as a result of this rulemaking. The 
respondents further indicated that they would be forced to eliminate as 
many as 70 jobs (20 percent of their workforce).
    While there may be economic shifts as businesses throughout the 
United States react to the rule, we are unable to project 
authoritatively the likely size of the impact. APHIS does not have 
independent information regarding the possible magnitude of business 
losses and is not able to evaluate nurseries' future workforce needs. 
Additionally, while we acknowledge the commenter's concerns with regard 
to potential business losses by Florida nurseries, we believe that the 
importation of Bromeliad plants in growing media can also result in 
economic gains in Florida and elsewhere. Just as there may be Florida 
wholesale nurseries negatively affected, there may also be other 
businesses, such as retailers, that gain from the rule. There may be 
negative employment consequences of the rule for certain wholesale 
nurseries, but there may also be jobs created as other businesses 
expand due to new marketing opportunities resulting from the rule.
    Moreover, APHIS' authority to prohibit the importation of Bromeliad 
plants in growing media from Belgium, Denmark, and the Netherlands is 
based on the pest risks associated with such imports. The Agency does 
not have statutory authority to prohibit or restrict the importation of 
plants or plant products on the basis of economic or competitive 
considerations.
    Another commenter stated that the mitigation measures in Sec.  
319.37-8(e) to which Bromeliads imported from Belgium, Denmark, and the 
Netherlands would be subject under this rulemaking are not adequate to 
prevent the spread of plant diseases such as Fusarium oxysporum f. sp. 
Additional measures, including a serological test, should be employed, 
according to the commenter.
    Plants imported in growing media in accordance with the regulations 
in Sec.  319.37-8(e) are subject to a systems approach, which includes 
stringent requirements that will not be affected by this rulemaking. 
Approved growing media for such imported plants are listed in Sec.  
319.78(e)(1). The regulations also require that mother stock and 
production plants be inspected by an inspector from APHIS or the 
national plant protection organization (NPPO) of the exporting country 
and found free from evidence of pests and diseases. Plants to be 
exported to the United States under Sec.  319.87-8(e) must be grown in 
a greenhouse in which sanitary procedures adequate to exclude plant 
pests and diseases are always employed. There are also various 
requirements for written agreements between growers and the NPPO of the 
exporting country and oversight by the latter. It is our view that the 
systems approach required under Sec.  319.37-8(e) is more than adequate 
to prevent the dissemination and spread of plant pests and diseases, 
including Fusarium oxysporum f. sp., via the importation of Bromeliad 
plants in growing media into the United States.
    One commenter stated that, as a condition for allowing Bromeliads 
to be exported from the European Union (EU) to the United States, APHIS 
should require the EU to remove the whitefly restrictions it has placed 
on U.S. growers exporting Bromeliads to EU countries. The commenter 
viewed those requirements as an unfair trade barrier for U.S. growers.
    APHIS makes decisions as to whether to allow the importation of 
agricultural products and commodities based on an evaluation of facts, 
data, and available scientific evidence. While the order of processing 
particular requests may be influenced by trade considerations, and the 
components of a risk management program may be a product of 
negotiations between APHIS and its foreign counterparts, the ultimate 
determination as to whether a commodity can be safely imported is based 
on a determination that the product can be imported without introducing 
a plant pest or noxious weed into the United States. In this instance, 
our decision to allow the importation of Bromeliad plants of the genera 
Aechmea, Cryptanthus, Guzmania, Hohenbergia, Neoregelia, Tillandsia, 
and Vriesea from Belgium, Denmark, and the Netherlands in an approved 
growing medium, subject to specified growing, inspection, and 
certification requirements, is based on the results of our pest risk 
analysis, which was made available for public review along with the 
March 2011 proposed rule.
    Part of APHIS's mission is to facilitate exports, and we make every 
effort to assist domestic industry in securing access to export 
markets. Success in this area is somewhat tied to factors out of our 
control, however. In general, phytosanitary measures applied by 
importing countries or regions to mitigate the risk posed by a 
particular plant or plant part exported from another country or region 
are determined by the particular risks posed in each case. The risk 
posed by imported plants is dependent on the pests associated with the 
commodity in the country of origin and the pests' potential impact on 
the importing country. As such, reciprocal trade could occur under the 
same phytosanitary conditions if the pest dynamics in both the 
exporting and importing countries are the same, but those conditions 
may vary if the pest dynamics in the two countries differ. Because of 
climatic conditions and other factors, the risks posed to the EU by 
Bromeliad imports from the United States are not likely the same risks 
posed by imports of Bromeliads from the EU into the United States.
    Two commenters, both Bromeliad growers from the Netherlands, wrote 
to inquire whether the plugs that their companies use to grow young 
Bromeliad plants would be regarded as acceptable growing media under 
the proposed rule. Along with their comments, they sent data sheets and 
pictures of the plugs they use.
    The plugs used by these growers will be regarded as acceptable if 
they consist of one or a combination of the approved growing media 
listed in Sec.  319.37-8(e)(1) and also meet the requirement contained 
in that paragraph that the growing media must not have been previously 
used. This final rule does not amend the list of approved growing media 
in Sec.  319.37-8(e)(1).
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Executive Order 12866 and Regulatory Flexibility Act

    This final 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 accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov Web site (see footnote 1 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    This final rule allows the importation into the United States of 
Bromeliad plants in approved growing media from

[[Page 67583]]

Belgium, Denmark, and the Netherlands. Bromeliad plants are most 
commonly used as houseplants or landscape ornamentals in warmer 
climates.
    Most wholesale nurseries that sell Bromeliads within the United 
States are located in Florida. Based upon a survey conducted in April 
2011, the Florida Nursery, Growers and Landscape Association found that 
there are seven nurseries in that State that import immature Bromeliad 
plants from Belgium, Denmark, and the Netherlands for finishing before 
sale to retailers. These businesses will be directly affected by the 
rule. Under the rule, producers in Belgium, Denmark, and the 
Netherlands will be able to ship mature Bromeliad plants in growing 
media directly to U.S. retailers. Although the rule will allow the 
European suppliers to bypass domestic nurseries and provide finished 
plants directly to U.S. retailers, such a scenario is not considered to 
be a certainty, given difficulties associated with shipping finished 
plants in pots. It is possible that the European suppliers will 
continue to export immature plants to domestic nurseries--but in 
growing media instead of in bare-root form--that will then grow them 
out for sale as finished plants.
    U.S. nurseries that produce Bromeliad plants from seed may also be 
affected by the rule, to the extent that their sales are displaced by 
Bromeliad plants in growing media imported from Belgium, Denmark, and 
the Netherlands. The number of these nurseries is unknown but is 
estimated to be fewer than 100, most or all of which are located in 
California, Florida, and Texas.
    Most if not all U.S. wholesale nurseries that sell Bromeliad plants 
are small entities under the Small Business Administration's standard 
of not more than $750,000 in annual receipts. The impact of the rule on 
these nurseries will depend on the volume and life-stage of the 
imported Bromeliads, and on the portions of the nurseries' incomes that 
derive from Bromeliad plant sales. Other small entities, including 
retail nurseries, are expected to benefit from new business 
opportunities created by the importation of Bromeliad plants in growing 
media from Belgium, Denmark, and the Netherlands.

Executive Order 12988

    This final 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.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of Bromeliad 
plants from Belgium, Denmark, and the Netherlands under the conditions 
specified in this rule will 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), as amended (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' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\2\ Copies of the 
environmental assessment and finding of no significant impact are also 
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. Persons wishing 
to inspect copies are requested to call ahead on (202) 690-2817 to 
facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the person listed under FOR FURTHER INFORMATION 
CONTACT.
---------------------------------------------------------------------------

    \2\ Go to http://www.regulations.gov/#!docketDetail;D=APHIS-
2010-0005. The environmental assessment and finding of no 
significant impact will appear in the resulting list of documents.
---------------------------------------------------------------------------

Paperwork Reduction Act

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 319

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

    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, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  319.37-6  [Amended]

0
2. In Sec.  319.37-6, footnote 8 is redesignated as footnote 7.


Sec.  319.37-7  [Amended]

0
3. In Sec.  319.37-7, footnote 9 is redesignated as footnote 8.


Sec.  319.37-13  [Amended]

0
4. In Sec.  319.37-13, footnote 11 is redesignated as footnote 12.

0
5. In Sec.  319.37-8, paragraph (e) introductory text, the list is 
amended as follows:
0
a. By redesignating footnote 10 as footnote 9.
0
b. By adding a new entry, in alphabetical order, and new footnote 10 to 
read as set forth below.
0
c. By revising footnote 11 to read as set forth below.


Sec.  319.37-8  Growing media.

* * * * *
    (e) * * *
    Bromeliad plants of the genera Aechmea, Cryptanthus, Guzmania, 
Hohenbergia, Neoregelia, Tillandsia, and Vriesea from Belgium, Denmark, 
and the Netherlands.\10\
---------------------------------------------------------------------------

    \10\ See footnote 9.
---------------------------------------------------------------------------

* * * * *
    Nidularium \11\
---------------------------------------------------------------------------

    \11\ See footnote 9.

    Done in Washington, DC, this 28th day of October 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-28404 Filed 11-1-11; 8:45 am]
BILLING CODE 3410-34-P