# Cut Flowers

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-1918

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** January 28, 1999
- **Citation:** 64 FR 4347

## Text

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

[[Page 4348]]

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:

------------------------------------------------------------------------
Current section Proposed section
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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

[[Page 4349]]

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

[[Page 4350]]

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]
BILLING CODE 3410-34-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-1918. Public record. Not legal advice.