[Federal Register Volume 77, Number 123 (Tuesday, June 26, 2012)]
[Rules and Regulations]
[Pages 37997-38000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15542]



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 Rules and Regulations
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  Federal Register / Vol. 77, No. 123 / Tuesday, June 26, 2012 / Rules 
and Regulations  

[[Page 37997]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2011-0073]
RIN 0579-AD54


Importation of Dracaena Plants From Costa Rica

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the plants for planting regulations to provide 
conditions for the importation into the continental United States of 
Dracaena spp. plants from Costa Rica. These conditions will apply to 
plants less than 460 mm in length, which are currently allowed to be 
imported, and will also allow for the importation of plants over 460 mm 
and up to 1,371.6 mm in length, which are currently prohibited. As a 
condition of entry, Dracaena spp. plants from Costa Rica will have to 
be produced in accordance with integrated pest risk management measures 
that will include requirements for registration of place of production 
and packinghouses, a pest management plan, inspection for quarantine 
pests, sanitation, and traceability from place of production through 
the packing and export facility and to the port of entry into the 
United States. All Dracaena spp. plants from Costa Rica will also be 
required to be accompanied by a phytosanitary certificate with an 
additional declaration stating that all conditions for the importation 
of the plants have been met and that the consignment of plants has been 
inspected and found free of quarantine pests. This action will allow 
for the importation of oversized Dracaena spp. plants from Costa Rica 
into the United States while continuing to provide protection against 
the introduction of quarantine pests.

DATES: Effective Date: July 26, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. William D. Aley, Senior Import 
Specialist, Plants for Planting Policy, PPQ, APHIS, 4700 River Road, 
Unit 136, Riverdale, MD 20737-1231; (301) 851-2130.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart--Plants for Planting'' (7 CFR 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 planting to prevent the introduction and 
dissemination of plant pests that are new to or not widely distributed 
within the United States.
    Dracaena is a genus of about 40 species of tree- and shrub-like 
plants. Several species are grown as houseplants for their decorative 
strap-like foliage, low maintenance requirements, and tolerance of a 
wide range of growing conditions. Popular Dracaena spp. houseplants 
include Dracaena fragrans, commonly known as the corn plant, and 
Dracaena sanderiana, commonly known as lucky bamboo.
    Currently, whole and intact Dracaena spp. plants (including roots, 
stems, and leaves) may be imported into the United States only if they 
meet the size requirements in Sec.  319.37-2(b)(6)(i) and other general 
requirements in the regulations. The regulations currently allow only 
Dracaena spp. plants less than 460 mm (approximately 18 inches) in 
length. The size requirement was established because plants of that 
size are easily inspected and, if necessary, treated for pests; the 
size and density of growth of larger plants makes them more difficult 
to inspect and treat.
    On November 1, 2011, we published in the Federal Register (76 FR 
67379-67384, Docket No. APHIS-2011-0073) a proposal \1\ to amend the 
plants for planting regulations to provide conditions for the 
importation into the continental United States of Dracaena spp. plants 
from Costa Rica.
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    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0073.
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    We solicited comments concerning our proposal for 60 days ending 
January 3. 2012. We received six comments by that date. They were from 
foreign and domestic industry associations, an importer, a State 
agriculture department, and a private citizen. The comments were 
generally supportive but raised two questions concerning the proposed 
rule.
    One commenter asked if the Animal and Plant Health Inspection 
Service (APHIS) would be supplying copies of the bilateral workplan to 
domestic stakeholders for review.
    Bilateral workplans are agreements between APHIS and the national 
plant protection organization (NPPO) of a foreign Government and are 
not typically circulated for stakeholder review. However, they are 
public documents and interested stakeholders may obtain copies of the 
workplan by calling or writing to the individual listed under FOR 
FURTHER INFORMATION CONTACT.
    Two commenters stated that site visits should be conducted to 
ensure that the requirements of the bilateral workplan are met. One of 
these commenters expressed an interest in participating in site visits.
    As we explained in the proposed rule, APHIS may conduct site visits 
to inspect and monitor the pest management program. In the past, 
representatives of U.S. domestic industries have accompanied APHIS 
personnel on site visits at the invitation of the host NPPO, so it is a 
possibility that domestic stakeholders could accompany an APHIS 
representative traveling to Costa Rica. We do expect, however, that the 
routine site visits will most often be carried out by APHIS field 
personnel in Costa Rica as part of their routine duties rather than by 
U.S.-based personnel who would have to travel to Costa Rica to visit 
production and packing sites.
    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,

[[Page 37998]]

has not been reviewed by the Office of Management and Budget.
    In accordance with 5 U.S.C. 604, we have prepared 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.
    The United States imports approximately 25 million Dracaena spp. 
plants from Costa Rica annually. On average, APHIS intercepts pests in, 
and applies treatments to, over 8 percent of the Dracaena consignments 
and destroys less than 1 percent. Production, packing, storing and 
exportation of Dracaena spp. plants in accordance with the integrated 
pest risk management measures set forth in the rule will reduce pest 
infestations, subsequent pest interceptions, and the need to fumigate 
or destroy infested consignments at ports of entry.
    The oversized Dracaena spp. plants will be of greater value than 
the smaller plants currently allowed entry, and we expect U.S. 
nurseries will adjust to new marketing opportunities afforded by the 
larger plants. Most U.S. nurseries and other entities that may be 
affected by this rule are small.

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 Dracaena 
spp. plants from Costa Rica 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 individual listed under FOR FURTHER 
INFORMATION CONTACT.
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    \2\ Go to http://www.regulations.gov/#!docketDetail;D=APHIS-
2011-0073. The environmental assessment and finding of no 
significant impact will appear in the resulting list of documents.
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Paperwork Reduction Act

    This 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 amend 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.


0
2. Section 319.37-2 is amended as follows:
0
a. In the table in paragraph (a), by adding a new entry for ``Dracaena 
spp. plants not meeting the conditions for import in Sec.  319.37-5 
(y)'', in alphabetical order, to read as set forth below.
0
b. In paragraph (b)(6)(i), by adding the words ``Dracaena spp. plants 
from Costa Rica meeting the conditions of Sec.  319.37-5(y),'' after 
the citation ``Sec.  319.37-5(q),''.


Sec.  319.37-2  Prohibited articles.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
                                                                   Quarantine pests existing in the places named
 Prohibited article (includes seeds   Foreign places  from which     and capable of being transported with the
  only if specifically mentioned)             prohibited                        prohibited article
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Dracaena spp. plants not meeting     Costa Rica.................  Ancistrocercus circumdatus; Caldwelliola
 the conditions for import in Sec.                                 reservata; Chaetanaphothrips signipennis
  319.37-5(y).                                                     (banana rust thrips); Coccus viridis (green
                                                                   scale); Diplosolenodes occidentalis (spotted
                                                                   leatherleaf slug); Erioloides consobrinus;
                                                                   Neoconocephalus affinis (rattler conehead
                                                                   katydid); Oncometopia clarior (blue
                                                                   sharpshooter); Ovachlamys fulgens; Palliferra
                                                                   costaricensis (Costa Rica mantle slug);
                                                                   Planococcus minor (passionvine mealybug);
                                                                   Pseudococcus landoi (lando mealybug);
                                                                   Sarasinula plebeia (Caribbean leatherleaf
                                                                   slug); Succinea costaricana; Xylosandrus
                                                                   morigerus (brown coffee twig beetle).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. In Sec.  319.37-5, a new paragraph (y) is added to read as follows:


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

* * * * *
    (y) Special foreign inspection and certification requirements for 
Dracaena spp. plants from Costa Rica. Dracaena spp. plants from Costa 
Rica may only be

[[Page 37999]]

imported into the continental United States in accordance with the 
requirements of this paragraph (y), to prevent the plant pests 
Ancistrocercus circumdatus, Caldwelliola reservata, Chaetanaphothrips 
signipennis, Coccus viridis, Diplosolenodes occidentalis, Erioloides 
consobrinus, Neoconocephalus affinis, Oncometopia clarior, Ovachlamys 
fulgens, Palliferra costaricensis, Planococcus minor, Pseudococcus 
landoi, Sarasinula plebeia, Succinea costaricana, and Xylosandrus 
morigerus from entering the United States.
    (1) Size requirements. Dracaena spp. plants from Costa Rica 
imported into the continental United States may not exceed 1,371.6 mm 
(approximately 54 inches) in length from the soil line (or top of the 
rooting zone for plants produced by air layering) to the farthest 
terminal growing point.
    (2) Bilateral workplan. The national plant protection organization 
(NPPO) of Costa Rica must provide a bilateral workplan to APHIS that 
details the activities that the NPPO of Costa Rica will, subject to 
APHIS' approval of the workplan, carry out to meet the requirements of 
this paragraph (y).
    (3) Phytosanitary certificate. The phytosanitary certificate of 
inspection required by Sec.  319.37-4 that accompanies each consignment 
of Dracaena spp. plants from Costa Rica must contain additional 
declarations that the plants in the consignment have been produced, 
packed, stored, and exported in accordance with the requirements of 
this paragraph (y) and the bilateral workplan, and that the consignment 
has been inspected and found free of quarantine pests.
    (4) Participant registration and agreement. Persons in Costa Rica 
who produce, pack, or ship Dracaena spp. plants for export to the 
United States must:
    (i) Be registered and approved by the NPPO of Costa Rica; and
    (ii) Enter into an agreement with the NPPO of Costa Rica whereby 
the persons agree to participate in and follow the export program for 
Dracaena spp. plants established by the NPPO of Costa Rica.
    (5) Facility registration and agreement. Production, packing, and 
export facilities must be approved and registered by the NPPO of Costa 
Rica. Registered packing and export facilities may only accept plants 
from registered production facilities where plants are grown in 
compliance with the requirements of this paragraph (y) and the 
bilateral workplan. The NPPO of Costa Rica will provide APHIS with 
access to the list of registered facilities at least annually and when 
changes occur.
    (6) Training. Participants and personnel at approved production, 
packing, and export facilities must be trained in the requirements of 
this paragraph (y) and the bilateral workplan and in recognizing the 
quarantine listed in this paragraph (y). Training records must be 
maintained and made available to the NPPO of Costa Rica and APHIS on 
request.
    (7) Pest management program. Participants must establish a pest 
management program for all approved production, packing, and export 
facilities. Pest management programs must include field or facility 
scouting, monitoring, and control of target pests, and must be 
monitored and approved by the NPPO of Costa Rica. APHIS may visit sites 
to inspect and monitor the pest management program. Each approved 
facility must have a trained, dedicated person to supervise the pest 
management program. Records of pest management activities must be 
maintained and made available to the NPPO of Costa Rica and APHIS upon 
request.
    (8) Sanitation. Sanitation measures must be maintained at approved 
production, packing, and export facilities. Fallen or discarded plant 
material and debris, or plants with pests, must be removed and must not 
be included in field containers brought from production to packing 
facilities for export. Packing facilities must be free of sand, soil, 
earth, and plant pests, and phytosanitary practices adequate to exclude 
pests must be employed. Equipment, materials, and tools must be 
sanitized to avoid spreading pests or to prevent recontamination.
    (9) Inspections. Inspections undertaken in the export program for 
Dracaena spp. plants established by the NPPO of Costa Rica will 
include, but may not be limited to, the following:
    (i) Approved production, packing, and export facilities must be 
inspected by dedicated trained personnel at the approved facilities at 
least once weekly, and by the NPPO of Costa Rica at least once monthly.
    (ii) Packing materials and shipping containers for the plants must 
be approved by APHIS and inspected by the NPPO of Costa Rica to ensure 
that they do not introduce pests of concern to the plants.
    (iii) Inspection dates and results must be recorded and made 
available to APHIS upon request.
    (10) Traceability. Participants must establish a traceability 
system approved and audited by the NPPO of Costa Rica and APHIS. The 
identity and origin of the Dracaena spp. plants must be maintained from 
the production unit through the packing and export facilities and to 
the port of entry in the United States.
    (11) Recordkeeping. Participants must maintain records of program 
activities, including corrective measures, for a minimum of 3 years. 
Records must be made available to the NPPO of Costa Rica and APHIS on 
request.
    (12) Ineligibility for participation. (i) Persons who produce, 
pack, or ship Dracaena spp. plants will be ineligible for participation 
in the export program for Dracaena spp. plants and their production 
sites or packing or export facilities will lose approved status if:
    (A) Live pests are found in a production site;
    (B) Live pests are found in a shipment of plants; or
    (C) Persons who produce, pack, or ship Dracaena spp. plants violate 
the requirements set out in this section or required under the export 
program established by the NPPO of Costa Rica.
    (ii) A person who produces, packs, or ships Dracaena spp. plants 
may be reinstated, and that person's production sites or packing or 
export facilities may regain approved status, by requesting reapproval 
and submitting a detailed report describing the corrective actions 
taken by the person. Reapproval will only be granted upon concurrence 
from the NPPO of Costa Rica and APHIS.
    (13) Trust fund. The Government of Costa Rica must enter into a 
trust fund agreement with APHIS before each growing season. The 
Government of Costa Rica 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 (y) of 
this section. These costs will include administrative expenses incurred 
in conducting the services enumerated in paragraph (y) 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 Costa Rica 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 Costa Rica 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

[[Page 38000]]

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 Costa Rica or its designated representative or held 
on account until needed.

    Done in Washington, DC, this June 20, 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-15542 Filed 6-25-12; 8:45 am]
BILLING CODE 3410-34-P