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October 7, 1996


James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

Plaintiff, a trade association whose members include growers of ornamental potted plants, challenges an amendment by the U.S. Department of Agriculture Animal and Plant Health Inspection Service (APHIS) of its regulation 7 C.F.R. § 319.37-8, governing the importation of certain potted plants. The amendment permits the importation, in specified types of growing media, of four plant genera that could previously be imported only with bare roots. The regulatory question for APHIS, which APHIS answered in the negative, was whether importation in growing media increased the risk of the introduction into the United States of new plant pests or diseases.

 The plant growers' claim is that APHIS' conclusion, and thus the amendment, was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A). They seek a declaration that the amended regulations are unlawful, an injunction against their implementation, and an order rescinding them; or (in the alternative) a remand to APHIS with instructions to reopen the record.

 The parties have filed cross-motions for summary judgment. This memorandum explains the Court's conclusion that critical data were not withheld from the record, and that the rule is not arbitrary or contrary to law. The government's motion will be granted, and the plant growers' motion will be denied.


 APHIS published its notice of proposed rule making on September 7, 1993, 58 Fed. Reg. 47074. Public comments were solicited and received. A public hearing was held on October 26, 1993, in Washington, D.C. The final regulation was published on January 13, 1995. 60 Fed. Reg. 3067.

 The APHIS proposal was to amend regulations earlier promulgated under the Plant Quarantine Act, 7 U.S.C. § 151 et. seq., and the Federal Plant Pest Act, 7 U.S.C. § 150(a) et. seq. Those statutes authorize the Secretary of Agriculture to prohibit or restrict the importation of plants and plant products in order to prevent the introduction of any plant pest new to the United States or not theretofore known to be widely prevalent or distributed within and throughout the United States. Longstanding regulations published at 7 C.F.R. § 319.37 through 319.37-14 -- known as the "Quarantine 37" or "Q37" regulations -- govern the importation of nursery stock, live plants, roots, bulbs, seeds, and other plant products that are propagative. The Quarantine 37 regulations provide that propagative plant materials not otherwise prohibited may be imported, under restrictions, so long as they are handled in accordance with specified procedures for their inspection, treatment or handling so that the risks of spreading plant pests is "essentially eliminated."

 APHIS at first proposed to permit the importation into the United States in growing media of five plant genera, Anthurium, Alstroemeria, Ananas, Nidularium, and Rhododendron. APHIS also proposed to add to the list of approved non-soil "growing media" several new ones: baked expanded clay pellets, perlite, polymer stabilized starch, cork, volcanic rock, and rock wool.

 In its notice, APHIS described the analytical process it had undertaken, involving experts both within and outside USDA, to determine whether the five proposed new genera could be imported in growing media without introducing or disseminating plant pests. A "pest risk assessment group" had concluded that a number of pests associated with the five genera would indeed present a risk of introduction into the United States, with substantial harmful consequences, unless mitigation measures or safeguards were in place. A second group, from within the Department of Agriculture, considered the mitigation measures already in effect for plants imported in growing media, 7 C.F.R. § 319.37-8(e), and concluded:

"These requirements are an effective barrier to contamination of the articles by many pests, especially insects. We believe, based on years of experience in enforcing these requirements and studies of the growing facilities that apply them, that greenhouses meeting these requirements are highly effective in excluding injurious plant pests. Studies also show that unused growing media of the type allowed by the requirements are free from injurious plant pests. If plants that are brought into these greenhouses and established in unused growing media are also free from injurious plant pests, there is a high probability that the plants will remain free from pests and diseases during their growing period in the greenhouse."

 The APHIS notice also noted that all five of the genera were already permitted importation as bare-rooted plants and that there had been no reports of the introduction of plant pests associated with such importation. Nevertheless USDA proposed, in addition to the existing mitigation measures, that the mesh size of greenhouse screens be reduced; that visual inspection of the parent stock be required; that a minimum time for growing in greenhouses meeting U.S. standards be imposed before plants could be exported to the United States; that plants descended from other plants imported from a third country be subjected to these requirements; and that monitoring be required for plants being grown in greenhouses for export to the United States.

 The notice set forth the standard upon which APHIS proposed to act: to allow importation of an article in growing media "only if the risks associated with the importation [taking into account mitigation measures] are equal to or less than the risks associated with importing the article with bare-roots." The notice recited APHIS's provisional determination that; indeed, the five proposed genera could safely be imported in growing media if subjected to the additional mitigation safeguards noted above. The notice also addressed the economic impact of the new rule, noting that its overall economic effect would be lower prices to U.S. consumers but increased competition for small producers.

 The final rules, published by USDA some sixteen months after issuance of the notice, provided for the importation of four of the five proposed new genera. Final action on Rhododendron was deferred pending consultation with the Fish and Wildlife Service under the Endangered Species Act.

 Plaintiff filed this action on February 13, 1995, the date the final rule became effective. The Court heard a motion for preliminary injunction on March 14, ...

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