Cut Flowers From Countries With Chrysanthemum White Rust

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the cut flowers regulations to establish specific requirements for the importation of cut flowers that are hosts of chrysanthemum white rust (CWR) from countries where the disease is known to occur. We are also amending the nursery stock regulations to update lists of countries where CWR is known to occur. We are making these changes in order to make our cut flowers and nursery stock regulations consistent. This action is necessary because of numerous recent findings of CWR on cut flowers from Europe that pose a risk of introducing CWR in the United States.

DATES:

Effective Date: May 3, 2007.

FOR FURTHER INFORMATION CONTACT:

Mr. Tony Roman, Import Specialist, Commodity Import Analysis and Operation, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.

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 plant pests into the United States. The regulations in “Subpart-Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the nursery stock regulations) restrict, among other things, the importation of living plants, plant parts, and seeds for propagation. Conditions governing the importation of cut flowers into the United States are contained in “Subpart—Cut Flowers” (§§ 319.74-1 through 319.74-4, referred to below as the cut flowers regulations).

On July 7, 2005, we published in the Federal Register (70 FR 39194-39199, Docket No. 03-016-1) a proposal to amend the cut flowers regulations to establish specific requirements for the importation of cut flowers that are hosts of chrysanthemum white rust (CWR) from countries where the disease is known to occur. We also proposed to amend the nursery stock regulations to update lists of countries where CWR is known to occur.

We solicited comments concerning our proposal for 60 days ending September 6, 2005. On September 20, 2005, we published a document in the Federal Register (70 FR 55036, Docket No. 03-016-2) reopening the comment period for our proposed rule until October 21, 2005. We received eight comments by that date. The comments were from representatives of State and foreign governments, industry organizations, importers and exporters, and distributors. Two of those commenters supported the proposed rule. The remaining commenters expressed some reservations, which are discussed below.

General Comments

Two commenters stated that information about production site registration in the background section and the rule portion was inconsistent. Specifically, the commenters stated that it was unclear if all cut flower production sites in countries where CWR is known to occur would have to register with their national plant protection organizations (NPPOs) or if only those wishing to export to the United States would have to do so.

The commenter is correct, in that the wording used in the background section and the proposed regulatory text in our proposal regarding production site registration was inconsistent. The background section of the proposed rule stated that all production sites in countries where CWR is known to occur would have to register with their NPPOs. The proposed regulatory text stated that cut flowers would have to originate from production sites that were registered with their country's NPPO. It is our intent to only require those production sites that wish to ship CWR-susceptible species of cut flowers to the United States to register with their NPPOs. Because the error appeared only in the background section, it is not necessary to make a change in the regulatory text in this final rule.

One commenter took issue with our statement that CWR is not established in the United States. The commenter said that the CWR status of a country should be based on official survey information in conformance with international standards. Also, the commenter stated that we should recognize areas within countries as pest-free rather than considering the entire country to be affected, and that this recognition should be based upon official surveys conducted in accordance with the International Plant Protection Convention's (IPPC) standards for pest-free areas.

We maintain that CWR is not established in the United States. Based on the definitions given in the International Standards for Phytosanitary Measures (ISPM) No. 8, “Determination of Pest Status in an Area,” when CWR is found in the United States, it fits under the category of “Transient: Actionable, under eradication.” The explanation of this category given in ISPM No. 8 is that “the pest has been detected as an isolated population which may survive into the immediate future and, without phytosanitary measures for eradication, may establish. Appropriate phytosanitary measures have been applied for its eradication.” As stated in the proposed rule, whenever CWR has been detected in the United States, we have taken immediate action to eradicate the disease. With regard to recognizing areas within countries as CWR-free, we have not identified any CWR-free areas within the countries where the disease is known to occur at this time, but would be willing to do so if an affected country submits to APHIS scientific documentation that demonstrates the pest-free status of an area or areas within the country, and if the area otherwise meets the requirements in ISPM No. 4 “Requirements for the Establishment of Pest Free Areas.”

One commenter stated that risk mitigations should be based on a pest risk analysis, but noted that no pest risk analysis was done for the proposed rule. The commenter stated that it would be useful for APHIS to communicate to NPPOs the risks that have been identified by APHIS in this matter.

We explained in our proposed rule that we have been administratively regulating cut flowers from countries where CWR is known to occur since 1974. Under these circumstances, we believe that it is unnecessary to conduct a formal pest risk analysis. We also stated in our proposed rule that we are currently applying similar administrative restrictions to cut flowers from Mexico and the Netherlands and that these measures have been effective in preventing the introduction of CWR by cut flowers from those countries.

Two commenters stated that APHIS inspectors should not be allowed to oversee program operations in other countries. One of the commenters stated that APHIS being allowed to exercise influence over export certifications is inconsistent with IPPC standards and that inspecting production sites should be left up to the individual exporting country. The second commenter took issue with the statement in our proposed rule that, “* * * if any shipment of cut flowers is found to be infested with CWR upon arrival in the United States, we would prohibit imports from the originating production site until such a time as APHIS and the national plant protection organization of the exporting country can agree that the eradication measures taken have been effective and the pest risk within the production site has been eliminated.” The commenter stated that the effectiveness of eradication measures should be determined by the exporting country's NPPO, not APHIS.

As the NPPO of the United States, we have the right to monitor program operations in other countries in order to ensure that proper procedures are being followed so as to prevent the introduction of quarantine pests and diseases into the United States. APHIS inspectors will monitor production sites and pest survey information, but the NPPO of the individual countries will be ultimately responsible for monitoring and applying appropriate pest-control measures when necessary. Further, the APHIS inspectors who will be involved in monitoring the effectiveness of each country's program will primarily be APHIS employees who are already working closely with the NPPO in each country. With regard to eradication measures, it is not our intention to dictate which measures a country uses to eradicate CWR once it is detected. Our concern is with ensuring that the measures used by the production site have been effective and that the pest risk within the production site has been eliminated.

One commenter stated that the taxonomy of the genus Chrysanthemum has changed over the years and that the table of CWR hosts in § 319.74-2 should reflect these changes. The commenter noted that the plants belonging to the former Chrysanthemum spp. complex have been transferred to several other genera and that only three species are now recognized as belonging to the genus Chrysanthemum (i.e., C. carinatum, C. coronarium and C. segetum). The commenter added that these species are not hosts to CWR. The commenter also stated that the common name “chrysanthemum” should be associated with entries for the Dendrathema spp., Nipponanthemum spp., Leucanthemella spp., and Ajania pacifica, but not with entries of Chrysanthemum spp. Finally, the commenter stated that in the proposed rule, Leucanthemum appears as a synonym for a susceptible species when it is not considered a host and Chrysanthemum appears as a susceptible species.

The commenter is correct in that the taxonomy of the genus Chrysanthemum has changed over the years; however, the taxonomy has changed again since the suggestions made by the commenter were used. The earlier splitting of the genus referred to by the commenter caused a lot of resistance and confusion, because these plants were well-known as chrysanthemums and many countries did not want to use the new names. In 1995, a formal proposal was made to the International Botanical Congress to conserve the genus Chrysanthemum. The proposal was approved in the 1999 meeting of the Botanical Congress and the resulting “St. Louis Code” of 2000 conserved the genus Chrysanthemum. APHIS updated the taxonomic names in accordance with the decision, and we use the currently accepted names as treated in the USDA, Agricultural Research Service Germplasm Resources Information Network. The table in § 319.74-2 reflects the current taxonomy, and the synonyms listed in the second column include those names in use before the genus Chrysanthemum was conserved.

One commenter stated that plants for planting pose a greater risk than cut flowers because cut flowers will shortly end up in someone's home, while plants for planting can be propagated.

The regulations in § 319.37-2 prohibit the importation of CWR-susceptible species of plants for planting from countries where the disease is known to occur. In addition, the regulations in § 319.37-5(c) require that restricted articles from countries where CWR is not known to occur be accompanied by a phytosanitary certificate with a declaration that the “article was grown in a greenhouse nursery and found by the plant protection service of the country in which grown to be free of CWR based on visual examination of the parent stock, the articles for importation, and the greenhouse nursery in which the articles for importation and the parent stock were grown, once a month for 4 consecutive months immediately prior to importation.”

One commenter stated that we should clarify that Myclobutanil is the only fungicide listed that is intended for foliar fungicide application.

This information was provided in our economic analysis in a paragraph discussing the measures taken if CWR is found in the United States. We simply listed common pesticides that can be used to control CWR and it was not our intention to describe specific details about the appropriate uses of each of those pesticides. Further, the list was not part of the proposed mitigation measures.

One commenter stated that the proposed survey of one-quarter mile surrounding a positive site within the United States is too short. The commenter added that USDA literature indicates that spores may be dispersed by wind more than 700 meters (0.43 miles) away from the positive site.

We are not making any changes in response to this comment because it relates to our CWR national management plan and not the restrictions for cut flowers imports set forth in this rule; however, we will examine our national management plan and update it if warranted.

Effects on Existing Programs in Other Countries

One commenter stated that the rule would have a negative impact on Canadian exporters because chrysanthemums are often imported to Canada, made into bouquets, and then re-exported to the United States. These cut flowers are not accompanied by a phytosanitary certificate. The commenter was concerned that the proposed requirements would cause demand to exceed supply because only chrysanthemums that originated in a country where CWR is not known to occur would be allowed re-exportation in Canadian bouquets. The commenter also asked that consideration be given to the Flowers Canada pilot program, which allows for certain species of cut flowers originating from specific countries to enter the United States without 100 percent inspection. Along those same lines, a second commenter asked if cut flowers from South American countries where CWR is known to occur would be eligible for re-exportation to the United States if they had been cleared through the Miami Cut Flower Release Program before being moved to Canada and made into bouquets.

Based on numerous interceptions of CWR on cut flowers in recent years, we believe it is necessary to require additional restrictions on cut flowers from countries where CWR is known to occur. This means that only flowers of Canadian origin, or that originate in a country where CWR does not exist, will be eligible for importation under the regulations unless the flowers are accompanied by a phytosanitary certificate. With regard to the Flowers Canada pilot program, currently, this program does not include chrysanthemums because of the risk of introducing CWR into the United States; however, the Flowers Canada program will not otherwise be affected by the rule. With regard to the Miami Cut Flower Release Program, chrysanthemums from Canada entering the United States for a second time will be allowed entry because they have already been inspected and released in the United States under the program.

Two commenters asked that the final rule take into account the fact that in some countries, like Colombia, the programs in place to address CWR are not directly run by the NPPO. The commenters added that APHIS has not intercepted CWR on cut flowers from Colombia since 1990 despite the large amount of flowers that are exported to the United States from that country. One of the commenters stated that the measures imposed on cut flowers from Colombia are equivalent to—and in some cases exceed—the requirements set forth in our proposal, but that because of the proposed requirement for direct participation by the NPPO of the country of origin, Colombia would not be eligible to ship cut flowers of CWR-susceptible species to the United States without substantially modifying its existing procedures. The commenters requested that we modify some of the proposed measures for Colombian exporters.

In Colombia, Ascoflores is an exporter's association that has a cooperative working agreement with the Colombian Plant Protection Organization to dedicate personnel to plant health programs in the cut flower sector and currently oversees inspections of production sites and issues plant health declarations for Colombian cut flowers. We recognize that Colombia has in place measures that are not run by the NPPO, but that are equivalent to the requirements set forth in our proposal and that the rule is currently written as if APHIS will only accept certifications and documentation from the NPPO of the country of origin. We also acknowledge that as a result of Ascoflores' efforts, we have not had any interceptions of CWR on cut flowers from Colombia for more than 15 years and that this evidence supports the efficacy of the current measures in place in Colombia. Therefore, we have amended § 319.74-2(d)(3)(i) in this final rule to provide that production sites must be registered with the NPPO of the country of origin or its designee, and that the NPPO or its designee must provide a list of registered sites to APHIS. In addition, we have amended § 319.74-2(d)(3)(ii) to provide that each shipment of cut flowers must be accompanied by a phytosanitary certificate or equivalent documentation issued by the NPPO of the country of origin or its designee, that contains an additional declaration stating that the place of production as well as the consignment have been inspected and found free of Puccinia horiana.

Economic Analysis

One commenter took issue with the statement in our economic analysis certifying that the proposed requirements would not have a significant impact on a substantial number of small entities. The commenter provided figures that demonstrated that the economic effects of this rule on Colombian growers and exporters would be significant.

While we do recognize that the final rule will entail additional costs for importers for inspection and certification in foreign countries, the statement in the proposed rule referred to small entities in the United States, not foreign countries. As required by the Regulatory Flexibility Act, our economic analyses focus on the effects of our rules on small entities within the United States. Under the Plant Protection Act, our decisionmaking related to allowing or denying the importation of commodities must be based on phytosanitary considerations and not economic effects; even when considering the economic effects on U.S. small entities.

Additional Changes in This Final Rule

Since the publication of our proposed rule, we have had several findings of CWR on cut flowers from Ecuador. Therefore, in this final rule, we are adding Ecuador to the list of countries where CWR is known to occur.

In § 319.74-2(d) of our proposed rule, we listed Norway and the Ukraine as countries where CWR is known to occur; however, we failed to include Norway and the Ukraine in the lists of countries in § 319.37-2(a). In this final rule, we are correcting this error by adding Norway and the Ukraine to the list of countries where CWR is known to occur in § 319.37-2(a).

In each of the places where a list of countries where CWR is known to occur appeared in the proposed rule (i.e., §§ 319.37-2(a) and 319.74-2(d)(2)), we are amending those lists to update the listing of countries that comprise the European Union. We are also amending the table in § 319.37-2(a) by amending the entries for Leucanthemella serotina and Nipponanthemum nipponicum so that they reflect the complete list of countries where CWR is known to occur. We overlooked those two entries in our proposed rule. Similarly, we are amending §§ 319.37-5(c) and 319.37-7(a) to update the list of countries where CWR is known to occur that appear in each of those paragraphs.

Finally, as mentioned previously in this document, the taxonomy of Chrysanthemum has changed as a result of the conservation of the genus Chrysanthemum. As a result of this conservation, species that were formerly considered Dendranthema are now considered Chrysanthemum. Therefore, we are amending §§ 319.37-2(a) and 319.37-7(a)(3) by revising the entries for Dendranthema spp. to read “see Chrysanthemum spp.” This will prevent confusion on the part of importers who continue to use the name Dendranthema. We are also amending the entries for Chrysanthemum spp. in §§ 319.37-2(a), 319.37-5(c), and 319.37-7(a)(3) by adding “includes Dendranthema spp.”

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.

We are amending the cut flowers regulations to establish specific requirements for the importation of cut flowers that are hosts of CWR from countries where the disease is known to occur. We are also amending the nursery stock regulations to update lists of countries where CWR is known to occur. This action is necessary because of numerous recent findings of CWR on cut flowers from Europe that pose a risk of introducing CWR in the United States.

In 2005, U.S. floriculture and nursery crop sales were close to $15.2 billion based on growers' receipts. Chrysanthemums were among the most profitable flowers for their growers. Total U.S. sales of chrysanthemums were estimated at $86.2 million in 2002. Of this amount, $68.9 million were attributed to florists' cut chrysanthemums and the remaining $17.3 million to potted (i.e., hardy) chrysanthemums. Chrysanthemums were not only one of the top four garden plants in terms of sales in 2005, they were also the garden plants with the second fastest price gains since 1995.

Between 2001 and 2005, 10 percent ($64.7 million) of the money spent on imported cut flowers was for chrysanthemums. About 91.6 percent of the cut flowers imported into the United States originate in countries where, based on interceptions by U.S. inspectors, CWR exists.

APHIS has prepared a national management plan which describes procedures in the event a nursery in the United States is infected with CWR. The plan calls for the nursery to be placed into quarantine status. If there are very few infected chrysanthemum plants, the grower has the option to use a fungicide to control the disease or to destroy the crop by incineration. However, no plant should leave the nursery for 8 weeks or until the nursery has been inspected and certified as being free from CWR. In addition to these containment measures, the plan calls for an inspection of every chrysanthemum grower and every residence within a quarter mile to be inspected for CWR.

The fungicides most often recommended to fight the fungus Puccinia horiana Henn., which causes CWR, are Myclobutanil, metam sodium, Dazomet, Chloropicrin, and methyl bromide. The cost of fungicide application varies, depending upon the plant size and number of leaves. A study by the National Agricultural Pesticide Impact Assessment Program and the University of California estimated the cost of different chemical treatments per acre of ornamental/nursery plants infected with fungus diseases, including CWR, by State. For field-grown nursery plants, all acreage was treated with fungicides. The treatment entailed spraying the flower plants with metam sodium, which costs $550 per acre, and then applying an herbicide at $200 per acre, totaling $750 per acre. For greenhouse plants, the treatment costs to fight CWR or any other fungus are higher.

In 1994, a property in California was quarantined after it was found to have chrysanthemums infected with CWR. The State followed with a survey around the affected residential area and found 70 more properties in the area with infected chrysanthemums. It cost $32,000, about $500 per residence, to eradicate the disease. A second survey by the State conducted 8 weeks following the first treatment process found very few remaining infected properties. However, the quarantine lasted much longer the second time and the average cost per property reached $7,000.

In 1995, chrysanthemum growers in San Diego County, CA, spent, on average, $5,000 per business establishment to fight a CWR infestation. The infestation was eradicated quickly and followed by an 8-week host-free period. However, the cost reached $100,000 for one greenhouse that experienced repeated infestations and remained quarantined for 10 months. Between 1992 and 1997, direct and indirect losses from CWR infestations to chrysanthemum growers in Santa Barbara County, CA, were approximately $2 million. The county reported an annual value of chrysanthemum production of more than $10 million in 1997.

Potential Effects

The economic effects that could result from the changes in the regulations are expected to be small for U.S. importers of cut chrysanthemums. The cost of the phytosanitary certification will be borne by the exporters, who may pass those costs on to U.S. importers. The expected benefit from the changes in import requirements for cut flowers from all countries where CWR is known to occur is the protection of U.S. floriculture and nursery crop industries and the jobs of the people they employ. In 2005, these two industries contributed $15.2 billion in sales revenue to the U.S. economy.

Potential Effects on Small Entities

The Regulatory Flexibility Act requires that agencies specifically consider the economic effects their rules on small entities. The Small Business Administration has established the size standards based on the North American Industry Classification System (NAICS) for determining which economic entities meet the definition of a small firm. The small entity size standard for nursery and tree production (NAICS code 111421) is $750,000 or less in annual receipts. A total of 1,691 floriculture operations out of 10,965 operations had sales of $500,000 or more. Thus, at least 85 percent of all floriculture operations can be classified as small entities, and it is likely that an even higher percentage can be classified as small entities due to the $250,000 discrepancy.

This rule will continue to allow imports of cut chrysanthemums from countries where CWR is known to occur, as long as the exporters from these countries comply with the import requirements described in this rule. We do not know the cost of certification in these countries compared to the average value of imported consignments of chrysanthemums, but it is expected to be minor. We do not expect that small entities in the U.S. floriculture industry will be significantly affected. However, the requirements will help safeguard the U.S. floriculture and nursery industries from additional introductions of CWR.

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 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this 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 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 0579-0271.

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 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 rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

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 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. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. In the table in § 319.37-2(a), the entries for “ Chrysanthemum spp. (chrysanthemum)”, “Dendranthema spp. (chrysanthemum)”, “Leucanthemella serotina”, and “Nipponanthemum nipponicum” are revised to read as follows:

3. In § 319.37-5, paragraph (c) is revised to read as follows:

4. In § 319.37-7, paragraph (a)(3), the table is amended by revising the entries for “ Chrysanthemum spp. (chrysanthemum) meeting the conditions in § 319.37-5(c)”, “Leucanthemella serotin a”, and “Nipponanthemum nipponicum”, and by removing the entry for “Dendranthema spp. (chrysanthemum) meeting the conditions in § 319.37-5(c)” and adding in its place an entry for “Dendranthema spp. (chrysanthemum)” to read as follows:

5. Section 319.74-2 is amended as follows:

a. By redesignating paragraphs (d) and (e) as paragraphs (e) and (f), respectively.

b. By adding a new paragraph (d) to read as set forth below.

c. By adding, at the end of the section, an OMB citation to read as set forth below.