Cut Flowers

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 98-021-2]

Cut Flowers

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the cut flowers regulations to provide that

APHIS inspectors will issue a written notice when pests are detected

and action on the part of the importer is required. We are also

amending the regulations to make it clear that the importer of cut

flowers is responsible for all costs of destroying or otherwise

disposing of pest-infested cut flowers should the importer choose not

to treat or reexport them. These changes will help reduce the risk of

cut flowers introducing plant pests into the United States by ensuring

that any necessary treatment or other required actions are completed.

EFFECTIVE DATE: August 16, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Campbell, Import

Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700

River Road Unit 140, Riverdale, MD 20737-1231; (301) 734-6799; or e-

mail: Ronald.C.C[email protected].

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319 prohibit or restrict the

importation of plants, plant parts, and related materials to prevent

the introduction of foreign plant pests into the United States. The

regulations in Sec. Sec. 319.74 through 319.74-4 (referred to below as

the regulations) govern the importation of cut flowers into the United

States and require, among other things, that all cut flowers be

inspected for injurious insects and plant diseases at the port of

entry.

[[Page 38109]]

On January 28, 1999, we published in the Federal Register (64 CFR

4347-4350, Docket No. 98-021-1) a proposal to amend the cut flowers

regulations to:

Provide that Animal and Plant Health Inspection Service

(APHIS) inspectors will issue a written notice when pests are detected

at the port of entry and action is required on the part of the

importer.

Make it clear that the importer of cut flowers is

responsible for all costs of destroying or otherwise disposing of pest-

infested cut flowers should the importer choose not to treat or

reexport them.

We solicited comments concerning our proposal for 60 days ending

March 29, 1999. We received four comments by that date. They were from

trade associations and representatives of State and Federal

governments. All responses were in favor of the proposal.

One State requested that APHIS inform the State Department of

Agriculture when it issues an emergency action notification (EAN) at a

port of entry in that State under this rule. Currently, APHIS' policy

is to make individual EANs available upon request, pursuant to the

Freedom of Information Act. We intend to discuss other options with the

State concerning the notification of issuance of EANs.

We have also made one nonsubstantive editorial change to clarify

that cut flowers must be made available for inspection at the port of

first arrival.

Therefore, for the reasons given in the proposed rule, we are

adopting the proposed rule as a final rule, with one change.

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 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 set out below, regarding the

economic effect of this rule on small entities.

This rule amends the cut flowers regulations to provide that

inspectors will issue a written notice when pests are detected in

shipments of imported cut flowers and action on the part of the

importer is required. This rule also makes it clear that the person

importing cut flowers, and not APHIS, is responsible for the costs of

destroying cut flowers when pests are detected and the cut flowers will

not be treated or reexported.

In our proposal, we solicited comments on the potential effects of

this action on small entities. In particular, we sought data and other

information to determine the number and kind of small entities that may

incur benefits or costs from the implementation of this rule. We

received no comments on our Initial Regulatory Flexibility Analysis.

This rule will help reduce the risk of cut flowers introducing

plant pests into the United States by ensuring that any necessary

treatment or other required actions are completed. This rule will also

help reduce costs for the Federal Government because it explicitly

requires that the costs of destroying infested or infected cut flowers

be the responsibility of the importer, owner, or agent or

representative of the importer or owner. We estimate that approximately

200 to 400 boxes of cut flowers are abandoned each month at Miami

International Airport, the port of entry for more than 90 percent of

foreign cut flowers. Estimates of the annual cost to APHIS for the

disposal or destruction of cut flowers range from $100,000 to $240,000.

The entities potentially affected by this rule are importers and

others in the United States who are involved in the importation of cut

flowers. This rule will increase costs for importers, who will be

required to absorb the cost of destroying infested or infected flowers

at U.S. ports of entry. The number and size of those entities

potentially affected by this rule are unknown.

It is reasonable to assume that most of the entities potentially

affected by this rule are small by U.S. Small Business Administration

(SBA) standards. In 1992, 99 percent of 4,322 wholesalers of flowers,

nursery stock, and florists' supplies were considered small entities.

The magnitude of the potential economic effect of this rule on small

entities cannot be determined.

There is reason to believe that the overall economic effect of this

rule on small entities will be insignificant, given that the volume of

cut flowers abandoned at U.S. ports of entry is very small compared to

the total volume of imported cut flowers allowed entry into the United

States. In 1996, the United States imported approximately 2.5 billion

fresh cut flower stems through Miami International Airport. No more

than 72,000 cut flowers are abandoned yearly at Miami International

Airport. Abandoned cut flowers, therefore, represent only a small

percentage of the overall volume of cut flower importations into the

United States.

Two alternatives to this rule were considered: (1) To make no

changes in the regulations and (2) to begin charging importers for

destruction by APHIS of abandoned cut flowers without making changes to

the regulations. We rejected the first alternative (making no change in

the regulations) after determining that the costs to APHIS are too high

to continue destroying or disposing of abandoned cut flowers at APHIS'

expense. We also rejected the second alternative (charging importers

for destruction by APHIS of abandoned cut flowers without making

changes to the regulations) because we believe it is necessary to

clarify our regulations regarding this issue since they do not

currently state that importers are responsible for abandoned cut

flowers. Because we have elected to exercise our authority to recover

all costs that we incur when disposing of abandoned cut flowers, we are

amending the cut flowers regulations to make them more consistent with

our regulations elsewhere in title 7, chapter III, by requiring that

the importer, owner, or agent or representative of the importer or

owner of cut flowers pay all additional costs associated with the

importation of cut flowers. APHIS will continue to provide the services

of an inspector during regular hours of duty at the usual place of duty

at no cost to the importer.

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.

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

Bees, Coffee, Cotton, Fruits, Honey, 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

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

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

[[Page 38110]]

2. Subpart--Cut Flowers is revised to read as follows:

Subpart--Cut Flowers

319.74-1 Definitions.

319.74-2 Conditions governing the entry of cut flowers.

319.74-3 Importations by the Department.

319.74-4 Costs and charges.

Subpart--Cut Flowers

Sec. 319.74-1 Definitions.

Administrator. The Administrator of the Animal and Plant Health

Inspection Service, United States Department of Agriculture, or any

employee of the United States Department of Agriculture delegated to

act in his or her stead.

Cut flower. The highly perishable commodity known in the commercial

flower-producing industry as a cut flower, which is the severed portion

of a plant, including the inflorescence and any parts of the plant

attached to it, in a fresh state. This definition does not include

dried, bleached, dyed, or chemically treated decorative plant

materials; filler or greenery, such as fern fronds and asparagus

plumes, frequently packed with fresh cut flowers; or Christmas

greenery, such as holly, mistletoe, and Christmas trees.

Inspector. Any individual authorized by the Administrator to

enforce this subpart.

United States. All of the States, the District of Columbia, Guam,

the Northern Mariana Islands, Puerto Rico, the Virgin Islands of the

United States, and all other territories or possessions of the United

States.

Sec. 319.74-2 Conditions governing the entry of cut flowers.

(a) Inspection. All cut flowers imported into the United States

must be made available to an inspector for examination at the port of

first arrival and must remain at the port of first arrival until

released, or authorized further movement, by an inspector.

(b) Actions to prevent the introduction of plant pests; notice by

an inspector. If an inspector orders any disinfection, cleaning,

treatment, reexportation, or other action with regard to imported cut

flowers that are found to be infested with injurious plant pests or

infected with diseases, the inspector will provide an emergency action

notification (PPQ Form 523) to the importer, owner, or agent or

representative of the importer or owner of the cut flowers. The

importer, owner, or agent or representative of the importer or owner

must, within the time specified in the PPQ Form 523 and at his or her

own expense, destroy the cut flowers, ship them to a point outside the

United States, move them to an authorized site, and/or apply

treatments, clean, or apply other safeguards to the cut flowers as

prescribed by the inspector on the PPQ Form 523. Further, if the

importer, owner, or agent or representative of the importer or owner

fails to follow the conditions on PPQ Form 523 by the time specified on

the form, APHIS will arrange for destruction of the cut flowers, and

the importer, owner, or agent or representative of the importer or

owner will be responsible for all costs incurred. Cut flowers that have

been cleaned or treated must be made available for further inspection,

cleaning, and treatment at the option of the inspector at any time and

place indicated by the inspector before the requirements of this

subpart will have been met. Neither the Department of Agriculture nor

the inspector may be held responsible for any adverse effects of

treatment on imported cut flowers.

(c) Fumigation for agromyzids. (1) Cut flowers imported from any

country or locality and found upon inspection to be infested with

agromyzids (insects of the family Agromyzidae) must be fumigated at the

time of importation with methyl bromide in accordance with paragraph

(c)(2) of this section, with the following exceptions:

(i) Fumigation will not be required for cut flowers imported from

Canada (including Labrador and Newfoundland) or Mexico because of the

finding of agromyzids.

(ii) Fumigation will not be required for cut flowers of

Chrysanthemum spp. imported from Colombia or the Dominican Republic

because of the finding of agromyzids, when such agromyzids are

identified by an inspector to be only agromyzids of the species

Liriomyza trifolii (Burgess).

(2) Fumigation schedules. Fumigation of cut flowers for agromyzids

(insects of the family Agromyzidae) must consist of fumigation with

methyl bromide at normal atmospheric pressure in a chamber or under a

tarpaulin in accordance with one of the following schedules:

1\1/2\ lbs. per 1,000 cu. ft. for 2 hours at 80-90 deg.F.

(19 oz. concentration at first \1/2\ hour)

(12 oz. concentration at 2 hours); or

2 lbs. per 1,000 cu. ft. for 2 hours at 70-79 deg.F.

(24 oz. concentration at first \1/2\ hour)

(16 oz. concentration at 2 hours); or

2\1/2\ lbs. per 1,000 cu. ft. for 2 hours at 60-69 deg.F.

(30 oz. concentration at first \1/2\ hour)

(20 oz. concentration at 2 hours); or

3 lbs. per 1,000 cu. ft. for 2 hours at 50-59 deg.F.

(36 oz. concentration at first \1/2\ hour)

(24 oz. concentration at 2 hours); or

3\1/2\ lbs. per 1,000 cu. ft. for 2 hours at 40-49 deg.F.

(41 oz. concentration at first \1/2\ hour)

(27 oz. concentration at 2 hours)

Note: There is a possibility that some cut flowers could be

damaged by such fumigation.

(d) Refusal of entry. If an inspector finds that imported cut

flowers are so infested with a plant pest or infected with disease

that, in the judgment of the inspector, they cannot be cleaned or

treated, or if they contain soil or other prohibited contaminants, the

entire lot may be refused entry into the United States.

Sec. 319.74-3 Importations by the Department.

The U.S. Department of Agriculture may import cut flowers for

experimental or scientific purposes under such conditions and

restrictions as the Administrator may prescribe to prevent the

dissemination of plant pests.

Sec. 319.74-4 Costs and charges.

The Animal and Plant Health Inspection Service, U.S. Department of

Agriculture, will be responsible only for the costs of providing the

services of an inspector during regularly assigned hours of duty and at

the usual places of duty (provisions relating to costs for other

services of an inspector are contained in 7 CFR part 354). The

importer, owner, or agent or representative of the importer or owner of

cut flowers is responsible for all additional costs of inspection,

treatment, movement, storage, or destruction ordered by an inspector

under this subpart, including the costs of any labor, chemicals,

packing materials, or other supplies required.

Done in Washington, DC, this 9th day of July 1999.

A. Cielo,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-18049 Filed 7-14-99; 8:45 am]

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