[Federal Register Volume 68, Number 24 (Wednesday, February 5, 2003)]
[Rules and Regulations]
[Pages 5800-5802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2683]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 01-042-2]


Interstate Movement of Gardenia From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending the Hawaiian fruits and vegetables regulations 
to provide for the movement of cut blooms of gardenia from Hawaii. We 
have determined that specific growing and inspection protocols can 
effectively mitigate the plant pest risks associated with gardenia 
grown in Hawaii. This action provides for the interstate movement of 
gardenia from

[[Page 5801]]

Hawaii while continuing to prevent the spread of plant pests within the 
United States.

EFFECTIVE DATE: March 7, 2003.

FOR FURTHER INFORMATION CONTACT: Hesham A. Abuelnaga, Import/Export 
Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River 
Road Unit 140, Riverdale, MD 20737-1236; (301) 734-5334.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Hawaiian Fruits and Vegetables'' (7 
CFR 318.13 through 318.13-17, referred to below as the regulations) 
govern, among other things, the interstate movement of fruits, 
vegetables, and other products, including cut flowers, from Hawaii. 
Regulation is necessary to prevent the spread of plant pests that exist 
in Hawaii.
    The regulations in Sec.  318.13-3(b)(1) provide that cut flowers 
(except cut blooms of gardenia, mauna loa, and jade vine, and leis 
thereof) may be moved interstate under certain conditions and if 
accompanied by a limited permit. The movement of cut blooms of gardenia 
has been prohibited due to gardenia's status as a host of green scale 
(Coccus viridus), also known as green coffee scale.
    On May 15, 2002, we published in the Federal Register (67 FR 34626-
34630, Docket No. 01-042-1) a proposal to amend the regulations to 
provide for the interstate movement of gardenia from Hawaii. As 
described in the proposed rule, cut blooms of gardenia from Hawaii 
would be eligible for movement to other parts of the United States if 
they were treated with irradiation in Hawaii or grown in accordance 
with certain prescribed conditions.
    We solicited comments concerning our proposal for 60 days ending 
July 15, 2002. We received a total of four comments by that date. They 
were from growers, researchers, and private citizens. Three commenters 
strongly supported the proposal, agreeing that specific growing and 
inspection protocols or irradiation treatment will effectively mitigate 
the plant pest risks associated with green scale and facilitate 
interstate movement of gardenia blooms from Hawaii.
    The remaining commenter stated that existing data concerning 
irradiation dosage rates for the treatment of gardenias for green scale 
are insufficient to support the effectiveness of the treatment 
described in the proposed rule. As a result of that comment, we 
reevaluated the proposed irradiation treatment option and found that 
the recommended 250 gray dosage likely is insufficient, since the data 
indicate that complete mortality of all green scales on gardenia 
treated at the proposed 250 gray dosage only occurs after 20 weeks. A 
higher dosage would be preferable, but testing has demonstrated that 
gardenias do not tolerate such a dose without unacceptable decline in 
quality. Consequently, we have concluded that the irradiation treatment 
described in the proposed rule would be an unacceptable treatment for 
quarantine purposes. Based on that conclusion, we have omitted 
treatment with irradiation from this final rule as an option for 
qualifying cut blooms of gardenia for interstate movement from Hawaii. 
We will continue to examine the irradiation treatment option and, if 
appropriate, amend the provisions for interstate movement of gardenias 
in the future.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

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 the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    In this document, we are amending the regulations to provide for 
the movement of cut blooms of gardenia from Hawaii. We have determined 
that specific growing and inspection protocols can effectively mitigate 
the plant pest risks associated with gardenia grown in Hawaii. This 
action provides for the interstate movement of gardenias from Hawaii 
while continuing to prevent the spread of plant pests within the United 
States.
    Under this rule, gardenia growers in Hawaii who wish to move cut 
blooms of gardenia interstate from Hawaii would be able to do so if the 
gardenias were produced in a growing area determined by an inspector to 
be free of green scale and to meet other requirements and if the cut 
blooms were inspected and found free of green scale prior to interstate 
movement.
    According to the USDA's Pacific Basin Agricultural Research Center 
in Hawaii, the total planted area of gardenias in Hawaii is 26.6 acres. 
Of the 26.6 acres of gardenias, only 3.6 acres belong to commercial 
farms: 2 acres in Kona, on the island of Hawaii; 1.1 acres in the Manoa 
Valley (Oahu); and 0.5 acres in Waipahu (Oahu). The remaining 23 acres 
of planted gardenias in Hawaii are owned by approximately 100 growers, 
each having an average of 20 to 25 bushes or about 10,000 square feet 
of production area. These gardenias are grown in ``backyard'' type 
production conditions.
    The largest commercial gardenia production area in Hawaii consists 
of 2 acres of planted gardenia bushes that produce about 69,200 flowers 
per year, with annual gross receipts from sales of just under $13,000. 
While sales figures are not available for the two smaller commercial 
producers, we presume that their annual sales are less than those of 
the largest producer.
    According to Small Business Administration size standards, an 
entity involved in floriculture production (NAICS code 111422) is 
considered a small entity if it has annual sales of less than $750,000. 
Under this definition, all commercial gardenia growers in Hawaii would 
be considered small entities.

Impact on Small Entities

    Under the Regulatory Flexibility Act, agencies are required to 
specifically consider the economic effects of their rules on small 
entities. The entities most likely to be affected by this rule are the 
commercial producers of gardenias discussed previously in this 
analysis; the producers are all considered to be small entities.
    We expect that commercial gardenia producers will benefit from the 
ability to move their products interstate to markets in the continental 
United States while incurring the costs associated with establishing 
and maintaining a green-scale-free growing area. While we cannot 
estimate the amount of additional sales that might be enjoyed by 
commercial gardenia producers as a result of this rule, we do not 
expect that amount will be substantial, given the limited scale of 
commercial gardenia production in Hawaii. The costs associated with the 
production area requirements are likely to be negligible and limited to 
the maintenance of a 20-foot-host-plant-free buffer zone around the 
production area, as the required inspections will be provided free of 
charge.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalogue of Federal 
Domestic Assistance under No. 10.025 and is subject to Executive order 
12372, which requires intergovernmental consultation with State and 
local officials. (See 7 CFR part 3015, subpart V.)

[[Page 5802]]

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

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0197.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and 
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin 
Islands.

    Accordingly, we are amending 7 CFR part 318 as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

    1. The authority citation for part 318 continues to read as 
follows:

    Authority: 7 U.S.C. 7711, 7712, 7714, 7731, 7754, and 7756; 7 
CFR 2.22, 2.80, and 371.3.

Subpart--Hawaiian Fruits, Vegetables, and Flowers

    2. The heading for the subpart is revised to read as set forth 
above.


Sec.  318.13-1  [Amended]

    3. In Sec.  318.13-1, in the definition of fruits and vegetables, 
the word ``mellons'' is corrected to read ``melons''.


Sec.  318.13-2  [Amended]

    4. In Sec.  318.13-2, paragraph (b) is amended as follows:
    a. In the introductory text, by removing the words ``fruits and 
vegetables'' and adding the word ``articles'' in their place.
    b. In the list of regulated articles, by adding, in alphabetical 
order, an entry for ``Gardenia (cut blooms)''.
    c. At the end of the section, in the sentence following the list, 
by removing the words ``and vegetables'' and adding the words ``, 
vegetables, or other products'' in their place and by removing the 
words ``fruits or vegetables'' and adding the words ``articles'' in 
their place.


Sec.  318.13-3  [Amended]

    5. In Sec.  318.13-3, paragraph (b)(1) is amended by removing the 
words ``gardenia, mauna loa,'' and adding the words ''mauna loa'' in 
their place and by adding the words '', and except any cut blooms of 
gardenia not grown in accordance with Sec.  318.13-4j'' after the word 
``thereof''.


Sec.  318.13-4  [Amended]

    6. Section 318.13-4 is amended as follows:
    a. In paragraph (a), by removing the words ``Fruits and 
vegetables'' and adding the words ``Regulated articles'' in their 
place.
    b. In paragraph (c)(2), by removing the words ``fruits and 
vegetables'' and adding the words ``fruits, vegetables, or other 
products'' in their place.

    7. A new Sec.  318.13-4j is added to read as follows:


Sec.  318.13-4j  Administrative instructions governing the interstate 
movement of cut blooms of gardenia from Hawaii.

    Cut blooms of gardenia may be moved interstate from Hawaii if grown 
and inspected in accordance with the provisions of this section.
    (a) The grower's production area must be inspected annually by an 
inspector and found free of green scale. If green scale is found during 
an inspection, a 2-month ban will be placed on the interstate movement 
of cut blooms of gardenia from that production area. Near the end of 
the 2 months, an inspector will reinspect the grower's production area 
to determine whether green scale is present. If reinspection determines 
that the production area is free of green scale, shipping may resume. 
If reinspection determines that green scale is still present in the 
production area, another 2-month ban on shipping will be placed on the 
interstate movement of gardenia from that production area. Each ban 
will be followed by reinspection in the manner specified, and the 
production area must be found free of green scale prior to interstate 
movement.
    (b) The grower must establish a buffer area surrounding gardenia 
production areas. The buffer area must extend 20 feet from the edge of 
the production area. Within the buffer area, the growing of gardenias 
and the following green scale host plants is prohibited: Ixora, ginger 
(Alpina purpurata), plumeria, coffee, rambutan, litchi, guava, citrus, 
anthurium, avocado, banana, cocoa, macadamia, celery, Pluto indicia (a 
weed introduced into Hawaii), mango, orchids, and annona.
    (c) An inspector must visually inspect the cut blooms of gardenias 
in each shipment prior to interstate movement from Hawaii to the 
mainland United States. If the inspector does not detect green scale in 
the shipment, the inspector would issue a certificate for the shipment 
in accordance with Sec.  318.13-4(a). If the inspector finds green 
scale in a shipment, that shipment will be ineligible for interstate 
movement from Hawaii.

(Approved by the Office of Management and Budget under control 
number 0579-0197)

    Done in Washington, DC this 30th day of January 2003.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-2683 Filed 2-4-03; 8:45 am]
BILLING CODE 3410-34-P