Cut Flowers Regulations; Removal of Chrysanthemum White Rust-Related Provisions, 23365-23368 [2023-07894]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 88, Number 73 (Monday, April 17, 2023)]
[Proposed Rules]
[Pages 23365-23368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07894]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 88, No. 73 / Monday, April 17, 2023 / 
Proposed Rules

[[Page 23365]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2019-0024]
RIN 0579-AE66


Cut Flowers Regulations; Removal of Chrysanthemum White Rust-
Related Provisions

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing the 
importation of cut flowers to remove requirements for the importation 
of specific types of cut flowers from the regulations, and to list them 
in the U.S. Department of Agriculture database called the Agricultural 
Commodity Import Requirements instead. Updates to these requirements 
would occur through a noticed-based process rather than rulemaking. We 
are also proposing to remove entirely any restrictions on the 
importation of cut flowers of the genera Chrysanthemum, Leucanthemella, 
and Nipponanthemum from countries in which chrysanthemum white rust 
(Puccinia horiana P. Henn., CWR) is known to exist. For this latter 
proposed action, we have prepared an analysis, which we are making 
available for public review and comment, that evaluates the efficacy of 
the current regulatory requirements in precluding the spread of CWR and 
the possible economic impacts associated with removing these 
requirements. These changes would allow us to use a notice-based, 
streamlined approach to update the import requirements for cut flowers, 
and it would remove CWR-specific restrictions on the importation of cut 
flowers.

DATES: We will consider all comments that we receive on or before June 
16, 2023.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Enter APHIS-2019-0024 in the Search field. Select the Documents tab, 
then select the Comment button in the list of documents.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2019-0024, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at www.regulations.gov or in our reading room, which is 
located in room 1620 of the USDA South Building, 14th Street and 
Independence Avenue SW, Washington, DC. Normal reading room hours are 8 
a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure 
someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Ms. Julie Orr, Regulatory Policy 
Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 
River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-4022.

SUPPLEMENTARY INFORMATION: 

Background

    Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the 
Secretary of Agriculture is authorized to take such actions as may be 
necessary to prevent the introduction and spread of plant pests and 
noxious weeds within the United States. The Secretary has delegated 
this authority to the Administrator of the Animal and Plant Health 
Inspection Service (APHIS) within the U.S. Department of Agriculture 
(USDA).
    Pursuant to the regulations in 7 CFR part 319, APHIS prohibits or 
restricts the importation of plants and plant products into the United 
States to prevent the introduction of plant pests that are not already 
established in the United States or plant pests that may be established 
but are under official control.
    The regulations in Subpart P--Cut Flowers, Sec. Sec.  319.74-1 
through 319.74-4 (referred to below as the regulations), govern the 
importation of cut flowers into the United States. Section 319.74-2 of 
the regulations contains conditions governing the importation of cut 
flowers. Paragraph (a) provides that all imported cut flowers are 
subject to inspection at ports of entry into the United States, while 
paragraph (b) describes, in general terms, actions that APHIS may 
require if cut flowers are found during the inspection to be infested 
with a plant pest.
    Paragraphs (c) and (d) of Sec.  319.74-2 contain requirements 
regarding specific types of cut flowers. Paragraph (c) provides that 
any cut flower found upon inspection to be infested with agromyzids 
(leaf-miners) must be fumigated with methyl bromide in accordance with 
7 CFR part 305, which contains our phytosanitary treatment regulations. 
Paragraph (d) lists the cut flowers of the genera Chrysanthemum, 
Leucanthemella, and Nipponanthemum that are considered to be hosts of 
chrysanthemum white rust (Puccinia horiana P. Henn., CWR) and countries 
in which CWR is known to exist. It explains that in order for any of 
these cut flowers to be imported into the United States, they must be 
grown in a place of production that is registered with the national 
plant protection organization (NPPO) of the respective country and that 
is subject to inspection by an APHIS-approved inspector; must be 
accompanied by a phytosanitary certification or equivalent 
documentation issued by the NPPO of the exporting country or their 
designee with an additional declaration that the place of production 
and the consignment itself were inspected and found free of CWR; and 
must have the identity of the registered production site marked on 
their box as well as other shipping documents that accompany the cut 
flowers.
    In addition to the regulations, APHIS maintains the USDA 
Agricultural Commodity Import Requirements (ACIR) database found on the 
internet at https://acir.aphis.usda.gov/s/. The database contains 
additional guidance regarding the importation of cut flowers. It also 
contains requirements for the importation of various taxa of cut 
flowers beyond the general requirements for the importation of all cut 
flowers.

[[Page 23366]]

Proposed Notice-Based Process for Revising Requirements for the 
Importation of Cut Flowers

    We are proposing to revise Sec.  319.74-2 to remove requirements 
regarding specific types of cut flowers from the regulations, to 
establish the ACIR database as the single location where such 
requirements are found, and to incorporate a notice-based process for 
updating these requirements.
    As revised, paragraph (c) of Sec.  319.74-2 would provide that, in 
addition to any other general conditions for importation in the 
section, APHIS may impose additional restrictions on the importation of 
specific types of cut flowers in order to effectively mitigate the risk 
of introducing quarantine pests into the United States. For the taxa of 
cut flowers whose importation is subject to additional restrictions, 
and the specific restrictions that apply to the importation of the cut 
flowers, please consult the ACIR database.
    As revised, paragraph (d) of Sec.  319.74-2 would provide the 
process for adding, changing, or removing restrictions on the 
importation of a particular type of cut flowers. Paragraph (d)(1) would 
provide that, if APHIS determines that the requirements for the 
importation of a specific type of cut flower are no longer necessary to 
reasonably mitigate the pest risk posed by the cut flower, we would 
publish a notice in the Federal Register proposing to revise the 
requirements for the importation of the cut flower. The notice would 
also make the new pest risk documentation on which these proposed 
requirements are based available for public comment. The notice would 
allow for at least 60 days of public comment.
    We would then issue a second notice after the close of the public 
comment period. This notice would inform the public of our decision 
whether to remove or relax requirements for the importation of the cut 
flower, and it would respond to any comments received on the initial 
notice.
    These provisions are modeled on the notice-based process for 
relaxing restrictions on the importation of plants for planting, which 
is found in 7 CFR 319.37-20, and the notice-based process for relaxing 
restrictions on the importation of fruits and vegetables, which is 
found in 7 CFR 319.56-4. APHIS has found that such notice-based 
processes allow us to respond to changes in the pest risk associated 
with the importation of plants for planting and fruits and vegetables 
in a timelier manner than rulemaking, while still providing the public 
with an opportunity to thoroughly evaluate the risk documentation on 
which our proposed changes are based.
    Proposed paragraph (d)(2) would provide the process for adding 
restrictions to the importation of a specific type of cut flower. If 
APHIS determines that the requirements for the importation of a 
specific type of cut flower are no longer sufficient to reasonably 
mitigate the pest risk posed by the cut flower, we would prohibit or 
further restrict importation of the cut flower. We would subsequently 
publish a notice in the Federal Register advising the public of our 
finding. The notice would specify the amended importation requirements, 
provide an effective date for the change, and invite public comment on 
the subject. This process is modeled on the process found in Sec.  
319.56-4, which we have used, in conjunction with Federal Orders, in 
order to impose additional restrictions on the importation of fruits 
and vegetables based on newly identified pest risks.
    In Sec.  319.74-2, we are proposing to redesignate current 
paragraphs (e) and (f) as paragraphs (f) and (g), respectively. We 
would add a new paragraph (e) to provide that types of cut flowers 
whose importation was subject to specific restrictions by specific 
regulation as of the effective date of any final rule following this 
proposed rule would continue to be subject to those restrictions, 
except as changed in accordance with the process specified in proposed 
paragraph (d) of Sec.  319.74-2. It would further provide that these 
restrictions are found in the ACIR database.
    Finally, we are proposing to add two definitions to Sec.  319.74-1, 
which contains definitions of terms used in the regulations, in order 
to clarify the meaning of two terms (quarantine pest and USDA ACIR 
database) that would be used in Sec.  319.74-2.
    We would define quarantine pest as a pest of potential economic 
importance to the area endangered by it and not yet present there, or 
present but not widely distributed there and being officially 
controlled. This is the definition used by the International Plant 
Protection Convention (IPPC) in International Standards for 
Phytosanitary Measures (ISPM) No. 5, ``Glossary of Phytosanitary 
Terms.'' \1\ The United States is a member of the IPPC and a signatory 
to ISPM No. 5. This is also the definition used in our regulations 
governing the importation of fruit and vegetables.
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    \1\ https://www.fao.org/3/mc891e/mc891e.pdf.
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    The definition for USDA ACIR database would provide that it is a 
database that contains restrictions on the importation of specific 
types of cut flowers, as provided in Sec.  319.74-2, and other 
information about the importation of cut flowers as provided in the 
regulations. The definition would also provide the location on the 
internet where the database may be found, as well as the means of 
obtaining a written copy of the downloadable information.
    For assistance obtaining a hard copy of commodity import 
requirements for an article(s), individuals may call (301) 851-2046, or 
(877) 770-5990 (toll-free automated system); email: 
[email protected]; or state a request in writing to United 
States Department of Agriculture, Animal and Plant Health Inspection 
Service; Attention: PPQ-PEIP-IRM-ISMU; 4700 River Road, Unit 133, 
Riverdale, MD 20737.

Removal of CWR-Related Restrictions on the Importation of Cut Flowers

    If this rule is finalized, we would move the restrictions on cut 
flowers that are currently found in paragraph (c) of Sec.  319.74-2 
(those pertaining to cut flowers found upon inspection to be infested 
with agromyzids) from the regulations to the ACIR database, thus 
retaining the restrictions. We would not, however, retain restrictions 
on the importation of cut flowers of the genera Chrysanthemum, 
Leucanthemella, and Nipponanthemum that are hosts of CWR from countries 
in which CWR is known to exist. We are proposing to relieve such 
restrictions based on an economic evaluation analysis, titled 
``Economic Evaluation of the Regulatory Policy for Chrysanthemum White 
Rust (CWR) (Puccinia horiana Henn.) in the United States,'' which we 
are making available for public comment along with this proposed rule. 
The economic evaluation (EE) determines that it is no longer 
technically or economically justified to consider CWR to be of 
quarantine significance.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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 accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this proposed rule on small entities. Copies of 
the full analysis are available by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see 
ADDRESSES

[[Page 23367]]

above for instructions for accessing Regulations.gov).
    CWR is considered a pest of quarantine significance in the United 
States. The aforementioned EE, however, has determined that it is no 
longer technically or economically justifiable to consider CWR of 
quarantine significance and thus should be removed from the list of 
quarantined pests. Plants infected with CWR are considered unmarketable 
and result in lost sales. The proposed rule, if promulgated, would 
remove CWR-specific restrictions on cut flower imports and transition 
the cut flower regulations to a notice-based process for communicating 
changes in import requirements based on pest risk. Stakeholders would 
have the opportunity to comment on the notices. The proposed rule 
directly affects the importation of cut flowers that are considered 
susceptible to CWR, namely chrysanthemum pompoms. The notice-based 
process established by the rule would be of general applicability to 
importation of all taxa of cut flowers.
    We estimate that the time savings afforded by this rule may range 
from 6 months to 2\1/2\ years per notice, relative to the status quo. 
This is based on comparable estimates in a prior rulemaking (83 FR 
46627-46639, Docket No. APHIS-2010-0082) that established a similar 
notice-based process for the importation of all fruits and vegetables, 
as well as their interstate movement from Hawaii and the territories. 
Before that final rule, the rulemaking process for importation or 
interstate movement from Hawaii and the U.S. territories of fruits and 
vegetables for which the notice-based process was not applicable took 
anywhere from 18 months to upward of 3 years. We estimated that the 
rule would reduce the administrative process needed for approval of 
these fruits and vegetables to 6 to 12 months. The rulemaking process 
for cut flowers is currently like that of fruits and vegetables, and 
the notice-based process that we are proposing would be substantively 
similar in terms of administrative process needed for approval of the 
notices. Accordingly, the time savings is expected to be similar for 
cut flowers.
    The Regulatory Flexibility Act requires that agencies specifically 
consider the economic effects their rules have on small entities as 
established by the Small Business Administration (SBA) and based on the 
North American Industry Classification System (NAICS) size standards 
for economic entities. According to the SBA, entities involved in 
Floriculture Production with $1 million or less in annual receipts are 
classified as small entities.\2\ \3\ National Agriculture Statistics 
Service data in 2020 indicates there were about 5,930 producers in the 
industry with around $4.8 billion in sales. Of the producers in the 
floriculture category, a little more than 1,000 operations had sales of 
$500,000 or more.\4\ Thus, at least 81 percent of all floriculture 
operations can be classified as small entities. The percentage of small 
entities is likely higher given entities with annual revenue of between 
$500,000 and $750,000.
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    \2\ Table of Size Standards based on NAICS 2014 [Floriculture 
Production: NAICS code 111422]. Washington, DC: U.S. Small Business 
Administration, effective August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019%2C%202019_Rev.pdf.
    \3\ NAICS Code 111422: Floriculture Production is defined as 
establishments primarily engaged in growing and/or producing 
floriculture products (e.g., cut flowers and roses, cut cultivated 
greens, potted flowering and foliage plants, and flower seeds) under 
cover and in open fields.
    \4\ USDA-NASS, Floriculture Crops 2020 Summary. Washington, DC: 
National Agricultural Statistics Service, ISSN: 1949-0917, May 2021, 
https://downloads.usda.library.cornell.edu/usda-esmis/files/0p0966899/s4656b62g/g445d913v/floran21.pdf.
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    The proposed rule would only directly pertain to cut flowers that 
serve as hosts for the CWR fungus. Of the approximately 285 operations 
engaged in cut flower production, which is a subcategory of the 
floriculture industry, there are only about 14 chrysanthemum (pompoms) 
operations. The wholesale value of the cut flower category was about 
$295 million in 2020, while that of chrysanthemums (pompoms) was around 
$2.8 million (1 percent of the total cut flower wholesale value). This 
implies most chrysanthemum producers are small entities.\5\
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    \5\ $2.8 million divided by 14 entities yields an average value 
of sales of $200,000.
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    In terms of wholesalers, based on the NAICS code, there are 
approximately 3,407 business entities classified as Flower, Nursery 
Stock, and Florists' Supplies Merchant Wholesalers. This category is 
comprised of establishments that are primarily engaged in the merchant 
wholesale distribution of flowers, florists' supplies, and/or nursery 
stock (except plant seeds and plant bulbs). The small-entity standard 
for these operations is not sales revenue, but whether they have 100 or 
more employees. According to 2019 U.S. Census Bureau data, 62 entities 
in this industry category had 100 or more employees and are considered 
small by SBA standards.\6\
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    \6\ United States Census Bureau 2019 County Business Patterns 
Survey: https://data.census.gov/cedsci/table?t=Employment&n=424930.
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    The proposed rule would remove CWR-specific import restrictions 
only for cut flowers that are susceptible to CWR, specifically 
chrysanthemums. While the proposed rule may enable foreign producers to 
send a greater quantity of chrysanthemums to the United States, it is 
doubtful that the quantity would be large enough to affect 
chrysanthemum prices or alter demand, as imports are already allowed 
(albeit with a phytosanitary certificate and/or equivalent 
documentation). Colombia already dominates this import category, with 
about 98 percent of chrysanthemum imports.
    It is not known how sensitive U.S chrysanthemum prices are to 
changes in the quantity imported. There is little information with 
which to quantify the impact of a potential increase in cut 
chrysanthemum imports on prices, but we assume demand would remain 
relatively unchanged and the proposed rule should not adversely impact 
producers, wholesalers, or retailers.
    Based on the information we have, there is no reason to conclude 
that adoption of this proposed rule would result in any significant 
economic effect on a substantial number of small entities. However, we 
do not currently have all of the data necessary for a comprehensive 
analysis of the effects of this proposed rule on small entities. 
Therefore, we are inviting comments on potential effects. 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.

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

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the reporting and recordkeeping 
requirements included in this proposed rule are approved by the Office 
of Management and Budget (OMB) under OMB control number 0579-0049.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the internet 
and

[[Page 23368]]

other information technologies, to provide increased opportunities for 
citizen access to Government information and services, and for other 
purposes. For information pertinent to E-Government Act compliance 
related to this proposed rule, please contact Mr. Joseph Moxey, APHIS' 
Paperwork Reduction Act Coordinator, at (301) 851-2483.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, 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

0
1. The authority citation for part 319 continues to read as follows:

    Authority:  7 U.S.C. 1633, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

0
2. Amend Sec.  319.74-1 by adding, in alphabetical order, definitions 
for Quarantine pest and USDA Agricultural Commodity Import Requirements 
database to read as follows:


Sec.  319.74-1  Definitions.

* * * * *
    Quarantine pest. A pest of potential economic importance to the 
area endangered by it and not yet present there, or present but not 
widely distributed there and being officially controlled.
* * * * *
    USDA Agricultural Commodity Import Requirements database. The 
database that contains restrictions on the importation of specific 
types of cut flowers, as provided in Sec.  319.74-2, and other 
information about the importation of cut flowers as provided in this 
subpart. The database is available on the internet at https://acir.aphis.usda.gov/s/. Hard copies of commodity import requirements 
may be obtained by calling (301) 851-2046 or (877) 770-5990 (toll-free 
automated system), by emailing [email protected], or by 
submitting a request to the United States Department of Agriculture's 
Animal and Plant Health Inspection Service, Attention: PPQ-PEIP-IRM-
ISMU, 4700 River Road, Unit 133, Riverdale, MD 20737-1231. Written 
requests for the database information should be marked as such.
0
3. Amend Sec.  319.74-2 by:
0
a. Revising paragraphs (c) and (d);
0
b. Redesignating paragraphs (e) and (f) as paragraphs (f) and (g), and 
adding a new paragraph (e);
0
c. In newly redesignated paragraph (f), in the first sentence, by 
removing the words ``under this part'' and adding, in their place, the 
words ``in accordance with this part''; and
0
d. Revising the OMB citation at the end of the section.
    The revisions and addition read as follows:


Sec.  319.74-2  Conditions governing the entry of cut flowers.

* * * * *
    (c) Location of additional requirements for the importation of 
specific cut flowers. In addition to any other general conditions for 
importation in this section, APHIS may impose additional restrictions 
on the importation of specific types of cut flowers in order to 
effectively mitigate the risk of introducing quarantine pests into the 
United States. For the taxa of cut flowers whose importation is subject 
to additional restrictions, and the specific restrictions that apply to 
the importation of those cut flowers, consult the USDA Agricultural 
Commodity Import Requirements database.
    (d) Process for adding, changing, or removing restrictions. 
Restrictions on the importation of specific types of cut flowers will 
be changed through the following processes:
    (1) Process for removing or relaxing restrictions. (i) If APHIS 
determines that the requirements for the importation of a specific type 
of cut flower are no longer necessary to reasonably mitigate the pest 
risk posed by the cut flower, APHIS will publish a notice in the 
Federal Register proposing to revise the requirements for the 
importation of the cut flower. The notice will also make the new pest 
risk documentation on which these proposed requirements are based 
available for public comment. The notice will allow for at least 60 
days of public comment.
    (ii) APHIS will issue a second notice after the close of the public 
comment period on the notice described in paragraph (d)(1)(i) of this 
section. This notice will inform the public of APHIS' decision whether 
to remove or relax requirements for the importation of the cut flower, 
and it will respond to any comments received on the initial notice.
    (2) Process for adding restrictions. If APHIS determines that the 
requirements for the importation of a specific type of cut flower are 
no longer sufficient to reasonably mitigate the pest risk posed by the 
cut flower, APHIS will prohibit or further restrict importation of the 
cut flower. APHIS will subsequently publish a notice in the Federal 
Register advising the public of its finding. The notice will specify 
the amended importation requirements, provide an effective date for the 
change, and will invite public comment on the subject.
    (e) Previously imposed restrictions on the importation of specific 
types of cut flowers. Types of cut flowers whose importation was 
subject to specific restrictions as of [Effective date of final rule], 
will continue to be subject to those restrictions, except as changed in 
accordance with the process specified in paragraph (d) of this section. 
The restrictions are found in the USDA Agricultural Commodity Import 
Requirements database.
* * * * *
(Approved by the Office of Management and Budget under control 
number 0579-0049)

    Done in Washington, DC, this 7th day of April 2023.
Michael Watson,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2023-07894 Filed 4-14-23; 8:45 am]
BILLING CODE 3410-34-P