Cut Flowers

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 98-021-1]

Cut Flowers

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the cut flowers regulations to

provide that APHIS inspectors issue a written notice when pests are

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

also proposing to amend 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 re-export them. These proposed changes would

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.

DATES: Consideration will be given only to comments received on or

before March 29, 1999.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 98-021-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 98-021-1. Comments may be

inspected 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

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inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Import

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

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

mail: Peter.M.G[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 importation of cut flowers into the United States is regulated

under ``Subpart--Cut Flowers,'' contained in Secs. 319.74 through

319.74-4 (referred to below as the regulations).

The regulations require that all cut flowers be inspected for

injurious insects and plant diseases at the port of entry. If cut

flowers are found to be infested, an inspector may require the cut

flowers to be cleaned or treated before allowing them entry into the

United States. If treatment is required, the importer or his agent is

given the option of: (1) Cleaning or treating the cut flowers as

prescribed by the inspector until free of plant pests; (2) shipping the

cut flowers to a point outside the United States; or (3) abandoning the

cut flowers at the port of entry for destruction. If the inspector

finds that the pests cannot be eliminated by cleaning or treatment, the

cut flowers may be refused entry into the United States and must be

shipped to a point outside the United States or abandoned for

destruction.

Under the regulations, all costs of treatment are to be borne by

the importer or his agent, as are the costs of shipping cut flowers to

a point outside the United States. However, if the importer or his

agent elects to abandon imported cut flowers at the port of entry, the

regulations do not explicitly require the importer or his agent to bear

the costs of destroying the flowers.

APHIS' policy regarding the costs associated with inspections,

which is stated in the ``costs and charges'' sections or paragraphs

throughout our regulations in title 7, chapter III, is that the

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

the usual places of duty will be furnished without cost, but that all

additional costs associated with the inspection, treatment, movement,

storage, or destruction of articles subject to our regulations are the

responsibility of the importer or owner.

Due to increasing volumes of abandoned cut flowers that have been

destroyed at government expense, especially at Miami International

Airport, which handles over 90 percent of all cut flower importations

into the United States, we are proposing to amend the regulations to

require that importers be responsible for the cost of destroying

infested or infected cut flowers, just as they are responsible for the

cost of any other treatment under the regulations. This proposed

change, which would be set out in a new Sec. 319.74-4, ``Costs and

Charges,'' is consistent with the policy described in the previous

paragraph. This proposed change to the cut flowers regulations would

make ``Subpart--Cut Flowers'' more consistent with our regulations

elsewhere in title 7, chapter III.

We are also proposing to amend the regulations to provide that an

inspector would issue the importer of cut flowers or his agent a

written notification in the event that an inspector found imported cut

flowers to be infested with injurious insects or infected with plant

diseases. Specifically, an inspector would issue an emergency action

notification (EAN) (PPQ Form 523), which would outline in detail the

options available to the importer. The EAN would also recommend

specific treatments, if available; notify the importer that

reexportation and destruction of cut flowers are permissible

alternatives to treatment; and clearly state that any actions ordered

on the emergency action notification and the cost of performing those

actions would be the responsibility of the importer. Further, we would

also amend the regulations to state that the importer of infested or

infected cut flowers must respond to the orders on the EAN within the

period of time specified on the EAN by the inspector. In the event that

the importer does not respond by the specified time, APHIS would

arrange for the destruction, disposal, treatment, or reexportation of

the cut flowers and would hold the importer responsible for all costs

associated with such actions.

Further, as part of our effort to make it clear who would be

responsible for cut flowers being imported into the United States, we

are also proposing to revise the terminology we use to refer to the

importer of cut flowers. The current regulations use the term

``importer or his agent.'' We are proposing to replace that term with

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

owner'' in order to encompass the range of individuals who may be held

responsible for cleaning, treating, transporting, or destroying cut

flowers and for the costs of doing so.

We are also proposing to make several nonsubstantive editorial and

organizational changes to the regulations, including removing an

outdated reference to ``special quarantine or other restrictive

orders,'' updating definitions, and revising and reorganizing the

subpart to make the regulations easier to understand and more

consistent with the rest of the regulations in part 319. These proposed

changes would not alter any current requirements. The following table

shows where the current provisions in ``Subpart--Cut Flowers'' can be

found in the proposed regulations:

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Current section Proposed section

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319.74(a)................................. Removed.

319.74(b)................................. Removed.

319.74(c)................................. 319.74-1.

319.74-1(a)............................... 319.74-1.

319.74-1(b)............................... 319.74-1.

319.74-2.................................. 319.74-2(a).

319.74-3(a)............................... 319.74-2(a), (b), and

(c)(1).

319.74-3(b)............................... 319.74-2(b), 319.74-4.

319.74-3(c)............................... 319.74-2(c)(2).

319.74-4.................................. 319.74-3.

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Executive Order 12866 and Regulatory Flexibility Act

This proposed 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. 603, we have performed an Initial

Regulatory Flexibility Analysis, which is set out below, regarding the

impact of this proposed rule on small entities. Based on the

information we have, there is no basis to conclude that this rule will

result in any significant economic impact on a substantial number of

small entities. However, we do not currently have all of the data

necessary for a comprehensive analysis of the economic impacts of this

proposed rule on small entities. Therefore, we are inviting comments on

potential economic impacts. In particular, we are interested in

determining the number and kind of small entities that may incur

benefits or costs from the implementation of this proposed rule.

Under the Federal Plant Pest Act (7 U.S.C. 150aa-150jj) and the

Plant Quarantine Act (7 U.S.C. 151-165, and 167), the Secretary of

Agriculture is authorized to regulate the importation of plants and

plant products to prevent the introduction of injurious plant pests.

We are proposing to amend the cut flowers regulations to make it

clear that

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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. We are also proposing to

provide for inspectors to issue a written notice when pests are

detected and action on the part of the importer is required. These

proposed changes would 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 proposed rule would also help reduce costs for the government

because it would explicitly require 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. It is

estimated 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 proposed rule are

importers and others in the United States who are involved in the

importation of cut flowers. This proposed rule would increase costs for

importers, who would 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 proposed rule is

unknown.

It is reasonable to assume that most of the entities potentially

affected by this proposed 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

impact on small entities is not available.

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

proposed rule on small entities would 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 proposed 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

believe it is necessary to amend 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 would 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 proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. If this proposed rule is adopted: (1) All State

and local laws and regulations that are inconsistent with this rule

will be preempted; (2) no retroactive effect will be given to this

rule; and (3) administrative proceedings will not be required before

parties may file suit in court challenging this rule.

Paperwork Reduction Act

This proposed 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, Incorporation by

reference, Nursery Stock, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 would continue 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).

2. Subpart--Cut Flowers would be 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 and must remain

at the port of entry 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

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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 or chemicals,

packing materials, or other supplies required.

Done in Washington, DC, this 21st day of January 1999.

Craig A. Reed,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-1918 Filed 1-27-99; 8:45 am]

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