[Federal Register Volume 64, Number 135 (Thursday, July 15, 1999)]
[Rules and Regulations]
[Pages 38108-38110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18049]


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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]
BILLING CODE 3410-34-P