[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Proposed Rules]
[Pages 4347-4350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1918]


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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:

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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

[[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