[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4327]
[[Page Unknown]]
[Federal Register: February 25, 1994]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 318
[Docket No. 93-088-1]
Avocados from Hawaii
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
interstate movement of Hawaiian fruits and vegetables to allow avocados
to be moved from Hawaii into Alaska, accompanied by a limited permit
and subject to certain conditions. We believe this action is warranted
because the climatic conditions in Alaska ensure that pests of avocados
would not present a threat to agriculture in that State. This action
would relieve some restrictions on the interstate movement of avocados
from Hawaii without presenting a significant risk of introducing
injurious insects into the United States. We are also proposing to
amend the regulations to clarify that limited permits may be issued by
inspectors or by persons operating under compliance agreements unless
the regulations specify that the limited permit must be issued by an
inspector.
DATES: Consideration will be given only to comments received on or
before April 26, 1994.
ADDRESSES: Please send an original and three copies of your comments to
Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804,
Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please
state that your comments refer to Docket No. 93-088-1. Comments
received 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
inspect comments are encouraged to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit,
Port Operations, Plant Protection and Quarantine, APHIS, USDA, room
632, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782, (301)
436-8645.
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian Fruits and Vegetables regulations (contained in 7 CFR
318.13 through 318.13-17, and referred to below as the regulations)
govern, among other things, the interstate movement from Hawaii of
avocados in a raw or unprocessed state. Regulation is necessary to
prevent the spread of the Mediterranean fruit fly (Ceratitis capitata
(Wied.)), the melon fly (Dacus cucurbitae (Coq.)), and the Oriental
fruit fly (Bactrocera dorsalis (Hendel)(Syn. Dacus dorsalis)). These
types of fruit flies are collectively referred to as Trifly.
The regulations allow avocados to be moved interstate from Hawaii
to any destination in the United States only if, among other things,
they have been treated in accordance with a treatment specified in
either Sec. 318.13-4d or Sec. 318.13-4e of the regulations. We are
proposing to amend the regulations to allow avocados to be moved from
Hawaii to Alaska without treatment, but subject to certain other
conditions.
Based on host tolerance studies, we have determined that the
treatments specified in Secs. 318.13-4d and 318.13-4e are not
commercially feasible for use on avocados. Section 318.13-4d provides
for treatment of avocados by fumigation with methyl bromide at normal
atmospheric pressure at the rate of 2 pounds per 1,000 cubic feet for 4
hours at 70 deg.F. or above under certain conditions. This treatment
causes pitting and internal and external discoloration, and reduces the
shelf life of the avocado by 2-4 days, all of which adversely affect
the marketability of the avocados. Section 318.13-4e provides for
treatment of mature green avocados under conditions which include
fumigation with methyl bromide at normal atmospheric pressure at the
rate of 2 pounds per 1,000 cubic feet for 2\1/2\ hours at 70 deg.F. or
above, followed by refrigeration for 7 days at fruit pulp temperature
of 45 deg.F. or below. This treatment cannot be feasibly used because,
after avocados are refrigerated for 7 days, there would not be a
sufficient shelf life remaining for marketing them. For these reasons,
avocados from Hawaii are not being treated and shipped interstate from
Hawaii.
Although two hosts of Trifly are grown in Alaska (apples and
pears), these pests of avocados could not become established in Alaska
because the pests could not survive that State's cold winters. We are
therefore proposing to add a new Sec. 318.13-4g to allow untreated
avocados from Hawaii to be moved interstate to Alaska only, provided
that certain conditions are met to help ensure that the avocados moved
to Alaska are free from Trifly. We consider these conditions necessary,
in addition to limiting movement only to Alaska, to minimize the risk
to Alaskan apples and pears and to address the slight risk that some
Hawaiian avocados might eventually move from Alaska to other States.
The conditions we propose to require are discussed below.
Marking Requirements
The avocados would have to be packed in boxes clearly marked with
the statement ``Distribution limited to the State of Alaska.'' This
requirement would dissuade shippers and brokers from diverting cargo,
and would alert cargo handlers and others who might not be familiar
with the restrictions of the regulations that the avocados are to be
distributed only in Alaska.
Commercial Shipments
We believe that allowing only commercial shipments of avocados to
be moved interstate from Hawaii to Alaska would be an added precaution
to minimize the risk of introducing Trifly into the continental United
States. Wild or ``backyard'' produce is generally grown under very
different conditions than commercially produced produce (e.g. wild or
backyard produce usually involves different varieties of produce and
different cultivation techniques, little or no pest control, and a lack
of sanitary controls during growing and packing). As a result, there is
reason to believe that wild or backyard avocados would present a
greater pest risk than commercially produced avocados. For these
reasons, we propose that only commercial shipments of avocados be
eligible for movement to Alaska. The term commercial shipment would be
added to Sec. 318.13-1, ``Definitions,'' to read as follows:
``Commercial shipment. Shipment containing fruits and vegetables
that an inspector identifies as having been produced for sale or
distribution in mass markets. Such identification will be based on a
variety of indicators, including, but not limited to: Quantity of
produce, type of packaging, identification of grower and packing house
on the packaging, and documents consigning the shipment to a wholesaler
or retailer.''
This definition is the same as the definition for commercial
shipment that appears in 7 CFR 319.56-1, which pertains to the
importation of fruits and vegetables from foreign countries.
Packing Requirements
We propose to require that the avocados be sealed in the packing
house in Hawaii in boxes with a seal that will break when the box is
opened. Such sealing would ensure that no avocados are removed from the
boxes before they reach their final destination in Alaska. Animal and
Plant Health Inspection Service (APHIS) inspectors would not allow any
boxes with broken seals to be moved into or through the continental
United States en route to Alaska.
Limited Ports
We propose to allow Hawaiian avocados to enter the continental
United States only at the following ports: Portland, OR; Seattle, WA;
or any port in Alaska. These ports would be convenient to shippers, but
would be sufficiently distant from warmer areas of the continental
United States more hospitable to Trifly. These ports are staffed by
APHIS inspectors, who would inspect permits for movement, inspect the
boxes of avocados to make sure that the boxes are intact and the seals
are not broken, and supervise transloading of shipments.
Shipping Requirements
We propose to allow the avocados to be moved from Hawaii to Alaska
only by air or ship and only if the boxes of avocados are in a sealed
container. As defined in Sec. 318.13-1 of the regulations, a sealed
container is ``[a] completely enclosed container designed for the
storage and/or transportation of commercial air, sea, rail, or truck
cargo, and constructed of metal or fiberglass, or other similarly
sturdy or impenetrable material, providing an enclosure accessed
through doors that are closed and secured with a lock or seal. Sealed
(sealable) containers used for sea shipments are distinct and separable
from the means of conveyance carrying them when arriving in and in
transit through the continental United States. Sealed (sealable)
containers used for air shipments are distinct and separable from the
means of conveyance carrying them before any transloading in the
continental United States. Sealed (sealable) containers used for air
shipments after transloading in the continental United States or for
overland shipments in the continental United States may either be
distinct and separable from the means of conveyance carrying them, or
be the means of conveyance itself.''
The avocados would not be permitted to be commingled in the same
sealed container with articles intended for entry and distribution in
parts of the United States other than Alaska. This precaution would be
necessary because the avocados may carry Trifly and commingling with
articles not destined for Alaska would pose a pest risk.
It may be necessary for a shipper to transload shipments arriving
at the ports of Portland, OR, or Seattle, WA. We are proposing to allow
transloading only under certain conditions to help ensure that the
shipments of avocados are not diverted en route to Alaska.
For shipments by sea, we would allow the avocados to be transloaded
from one ship to another ship at the port of arrival, provided they
remain in the original sealed container and that APHIS inspectors
supervise the transloading. If the avocados must be stored before
reloading, they must be kept in the original sealed container and must
be in an area that is either locked or guarded at all times the
avocados are present.
For shipments by air, we would allow the avocados to be transloaded
from one aircraft to another aircraft. Containers for air shipments,
unlike sea containers, often cannot practically be transferred to other
aircraft either because of their size or configuration. This means that
avocados shipped by air may have to be transloaded from the original
shipping container into another container or directly into the hold of
another aircraft. To accommodate this need, while at the same time
providing adequate safeguards and supervision against diversion of the
avocados, we are proposing that transloading of air shipments would be
authorized only if the following conditions are met: (1) The
transloading is done into sealable containers; (2) the transloading is
carried out within the secure area of the airport--i.e., that area of
the airport that is open only to personnel authorized by the airport
security authorities; (3) the area used for any storage of the shipment
is within the secure area of the airport, and is either locked or
guarded at all times the avocados are present. The avocados must be
kept in a sealed container while stored in the continental United
States en route to Alaska; and (4) APHIS inspectors supervise the
transloading.
We are not proposing a requirement for sea shipments parallel to
the requirement that the transloading and storage of air shipments must
be carried out in the ``secure area'' of the airport. Airports have
secure areas to protect against problems peculiar to airports (for
example, hijackings). Sea ports do not normally have a secure area.
Also, sealed containers for air shipments are usually made of a
relatively flimsy material such as aluminum, while sealed containers
for sea shipments are made of sturdier metal and are virtually tamper-
proof. Therefore, we do not believe that the extra precaution would be
necessary for sea shipments.
No transloading other than that described above would be allowed
except under extenuating circumstances (such as equipment breakdown)
and when authorized and supervised by an APHIS inspector. Because,
practically speaking, landing facilities for aircraft are not located
close enough to shipping docks to allow for direct transloading from an
aircraft to a ship or from a ship to an aircraft, we are not including
these options. Likewise, because of the distance between Portland or
Seattle and Alaska, it would not be practical to ship the avocados to
Alaska by truck or railcar. Therefore, we are not including the option
that shipments may be transloaded from an aircraft or ship to a truck
or railcar.
Limited Permit
We are proposing to require that shipments of avocados be
accompanied from Hawaii to Alaska by a limited permit issued by an
APHIS inspector in accordance with Sec. 318.13-4(c) of the regulations.
The limited permit would be issued only if the inspector examines the
shipment and determines that the shipment has been prepared in
compliance with the provisions we are proposing (for example, the boxes
must be properly marked and sealed). A limited permit would provide a
means of documenting the movement of the shipment following issuance of
the limited permit. We believe this would be necessary to ensure that
the avocados move in compliance with the regulations and to allow for
documentation of violations.
A limited permit would be withdrawn by an APHIS inspector if the
inspector determines that the holder of the permit has not complied
with all the conditions under the regulations for the use of the
limited permit. Provisions concerning removal of limited permits are
located in Sec. 318.13-16 of the regulations.
Currently, as a condition of issuance of a limited permit, persons
wishing to move articles regulated under Sec. 318.13 must sign an
agreement to, among other things, comply with the regulations for the
movement of the regulated articles (stipulations of the compliance
agreement are located in Sec. 318.13-4(d) of the regulations). The
primary purpose of requiring a compliance agreement is to allow persons
operating under compliance agreements to be issued a block of limited
permits or a limited permit stamp that they may apply to shipments
themselves without having to wait for an inspector to examine every
shipment. If a person violates any of the terms of the compliance
agreement, the agreement will be withdrawn and an inspector will issue
all limited permits individually for movement of regulated articles by
that person.
As stated above, our proposal for the movement of avocados from
Hawaii to Alaska would require the limited permit to be issued by an
APHIS inspector after the inspector has examined the shipment and
determined that the shipment has been prepared in compliance with the
proposed provisions. We believe that direct supervision by an inspector
would be an added precaution to ensure that the shipments of avocados
are properly marked, sealed, and shipped in accordance with the
regulations. Since this proposal would not allow shippers to be issued
limited permits in blocks or a limited permit stamp, it does not appear
necessary to require them to sign a compliance agreement.
Therefore, we are proposing several revisions to the current
regulations in Sec. 318.13 regarding limited permits and compliance
agreements to make the role of compliance agreements clear. We would
amend Sec. 318.13-4(c) by adding a new paragraph (c)(3) to state that
limited permits may be issued by a person operating under a compliance
agreement, except when the regulations specify that an inspector must
issue the limited permit. Section 318.13-4(d), ``Compliance
agreements,'' currently states: ``As a condition of issuance of a
limited permit, or a certificate under paragraph (b) of this section
for the movement of regulated articles for which a compliance agreement
is required, the person applying for the permit or certificate must
sign a compliance agreement stipulating that * * *''. We would amend
Sec. 318.13-4(d) by adding the phrase ``under paragraph (c)(3) of this
section'' after ``limited permit.'' The addition of the phrase would
clarify that not all limited permits are issued under compliance
agreements and would reference readers to the paragraph regarding
issuance of a limited permit for which a compliance agreement is
required.
In the definition of compliance agreement, we would remove the
references ``Sec. 318.13-4(e)'' and ``Sec. 318.13-4g'' because the
proposed regulations in Sec. 318.13-4g would not require a compliance
agreement and Sec. 318.13-4(e) no longer exists in the regulations. The
definition for limited permit currently reads: ``A document issued by
an inspector for the interstate movement of regulated articles to a
specified destination for: (1) Consumption, limited utilization or
processing, or treatment in conformity with a compliance agreement; or
(2) Movement into or through the continental United States in
conformity with a transit permit.'' We would revise this definition by
adding ``or a person operating under a compliance agreement''
immediately after ``inspector'', and by removing the phrase ``in
conformity with a compliance agreement'' from paragraph (1). These
revisions would allow limited permits to be issued either by a person
operating under a compliance agreement or by an inspector, according to
the requirements for each regulated article.
Additional Revisions
We are proposing to make two additional revisions to the
regulations to reflect the provisions of proposed Sec. 318.13-4g. We
are proposing to add a paragraph to Sec. 318.13-2, ``Prohibited
movement,'' to state that avocados which have been moved to Alaska in
accordance with proposed Sec. 318.13-4g are prohibited movement from
Alaska into or through other places in the continental United States,
Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands
of the United States. We are also proposing to add a paragraph to
Sec. 318.13-3, ``Conditions for movement,'' to stipulate that avocados
may be moved interstate from Hawaii to Alaska if the provisions of
Sec. 318.13-4g are met, and if they are accompanied by a limited permit
issued by an APHIS inspector in accordance with Sec. 318.13-4(c).
Finally, we are proposing to make a miscellaneous correction to the
regulations in Sec. 318.13-4f, which concern approval of irradiation
treatments as a condition for certification of papayas for movement
from Hawaii. Paragraph (b)(2)(iii) states that, in order to be
approved, irradiation treatment facilities must complete a compliance
agreement with APHIS as provided in Sec. 318.13-4(e). However, the
regulations regarding compliance agreements are now found in
Sec. 318.13-4(d). We would correct the reference in paragraph
(b)(2)(iii) to reflect this change.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
This proposed rule would allow untreated avocados to be moved
interstate from Hawaii to Alaska. Avocados are not presently shipped
from Hawaii to Alaska because required treatments do not make it
economically feasible.
In 1992, the U.S. production of avocados, not including Hawaii, was
approximately 290 million pounds. California produced approximately 86
percent of this total, with the Hass variety accounting for about 85
percent of California's production. The peak harvest season of the Hass
variety is April through October. California supplied approximately 90
percent of Alaska's 1992 avocado market.
In 1992, Hawaii produced approximately 700,000 pounds of avocados.
Thus, Hawaii's total production was less than 0.3 percent of the total
U.S. avocado production for that year. There are about 100 farms in
Hawaii that produce avocados. All of these would be considered small
entities (defined as having sales of less than $500,000 annually), as
the total value in 1992 for Hawaiian avocados was only $322,000. The
Sharwil variety accounts for about 75 percent of Hawaii's avocado
production. The peak harvest season for Sharwil avocados is November
through May.
The proposed rule change would positively affect Hawaiian avocado
producers by providing an economically feasible place for them to ship
avocados when there is a surplus in production. Although almost all of
Alaska's avocados are supplied by California, the addition of a
Hawaiian supply is unlikely to have a significant impact on Californian
avocado producers. Before a suspension of shipments in 1992, the
shipment of Hawaiian avocados to the mainland United States peaked at
only 100,000 pounds. Further, Californian avocados (Hass variety) and
Hawaiian avocados (Sharwil variety) have different peak production
seasons. As a result, their importation would overlap very little. The
shipment of Hawaiian avocados would allow Alaska to have a continuous
and varied avocado supply.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog 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.)
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
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 the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this proposed rule have been approved by the Office of
Management and Budget (OMB) under OMB control number 0579-0088.
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, 7 CFR part 318 would be amended as follows:
PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES
1. The authority citation for part 318 would continue to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,
167; 7 CFR 2.17, 2.51, and 371.2(c).
Sec. 318.13-1 [Amended]
2. Section 318.13-1 would be amended as follows:
a. In the definition for Compliance agreement the phrase
``Sec. 318.13-4(e),'' and the phrase ``and Sec. 318.13-4g'' would be
removed.
b. A definition for Commercial shipment would be added, in
alphabetical order, as set forth below.
c. The definition for Limited permit would be revised by adding the
phrase ``or a person operating under a compliance agreement''
immediately following ``inspector'', and by removing the phrase ``, in
conformity with a compliance agreement'' from paragraph (1).
Sec. 318.13-1 Definitions.
* * * * *
Commercial shipment. Shipment containing fruits and vegetables that
an inspector identifies as having been produced for sale or
distribution in mass markets. Such identification will be based on a
variety of indicators, including, but not limited to: Quantity of
produce, type of packaging, identification of grower and packing house
on the packaging, and documents consigning the shipment to a wholesaler
or retailer.
* * * * *
3. In Sec. 318.13-2, the regulatory text of paragraph (a) would be
redesignated as paragraph (a)(1) and a new paragraph (a)(2) would be
added to read as follows:
Sec. 318.13-2 Regulated articles.
(a) Prohibited movement.
(1) * * *
(2) Avocados which have been moved to Alaska in accordance with
Sec. 318.13-4g are prohibited movement from Alaska into or through
other places in the continental United States, Guam, the Northern
Mariana Islands, Puerto Rico, and the Virgin Islands of the United
States.
* * * * *
4. In Sec. 318.13-3, the text of paragraph (b) would be
redesignated as paragraph (b)(1) and a new paragraph (b)(2) would be
added to read as follows:
Sec. 318.13-3 Conditions of movement.
* * * * *
(b) To restricted destinations.
(1) * * *
(2) Avocados may be moved interstate from Hawaii to Alaska if the
provisions of Sec. 318.13-4g are met, and if they are accompanied by a
limited permit issued by an APHIS inspector in accordance with
Sec. 318.13-4(c).
* * * * *
Sec. 318.13-4 [Amended]
5. Section 318.13-4 would be amended as follows:
a. A new paragraph (c)(3) would be added to read as set forth
below.
b. Paragraph (d) would be amended by adding the phrase ``under
paragraph (c)(3) of this section'' immediately following the words
``limited permit''. Sec. 318.13-4 Conditions governing the issuance of
certificates or limited permits.
* * * * *
(c) Limited permits.
(1) * * *
(2) * * *
(3) Except when the regulations specify an inspector must issue the
limited permit, limited permits may be issued by a person operating
under a compliance agreement.
* * * * *
6. In Sec. 318.13-4f, paragraph (b)(2)(iii) would be amended by
removing the phrase ``Sec. 318.13-4(e)'' and replacing it with
``Sec. 318.13-4(d)''.
7. A new Sec. 318.13-4g would be added to read as follows:
Sec. 318.13-4g Administrative instructions governing movement of
avocados from Hawaii to Alaska.
Avocados may be moved interstate from Hawaii to Alaska without
being certified in accordance with Sec. 318.13-4 (a) or (b) only under
the following conditions:
(a) Distribution and marking requirements. The avocados may be
moved interstate for distribution in Alaska only, the boxes of avocados
must be clearly marked with the statement ``Distribution limited to the
State of Alaska'', and the shipment must be identified in accordance
with the requirements of Sec. 318.13-6.
(b) Commercial shipments. The avocados may be moved in commercial
shipments only.
(c) Packing requirements. The avocados must have been sealed in the
packing house in Hawaii in boxes with a seal that will break if the box
is opened.
(d) Ports. The avocados may enter the continental United States
only at the following ports: Portland, Oregon; Seattle, Washington; or
any port in Alaska.
(e) Shipping requirements. The avocados must be moved either by air
or ship and in a sealed container. The avocados may not be commingled
in the same sealed container with articles that are intended for entry
and distribution in any part of the United States other than Alaska. If
the avocados arrive at either Portland, Oregon or Seattle, Washington,
they may be transloaded only under the following conditions:
(1) Shipments by sea. The avocados may be transloaded from one ship
to another ship at the port of arrival, provided they remain in the
original sealed container and that APHIS inspectors supervise the
transloading. If the avocados are stored before reloading, they must be
kept in the original sealed container and must be in an area that is
either locked or guarded at all times the avocados are present.
(2) Shipments by air. The avocados may be transloaded from one
aircraft to another aircraft at the port of arrival, provided the
following conditions are met:
(i) The transloading is done into sealable containers;
(ii) The transloading is carried out within the secure area of the
airport--i.e., that area of the airport that is open only to personnel
authorized by the airport security authorities;
(iii) The area used for any storage of the shipment is within the
secure area of the airport, and is either locked or guarded at all
times the avocados are present. The avocados must be kept in a sealed
container while stored in the continental United States en route to
Alaska; and
(iv) APHIS inspectors supervise the transloading.
(3) Exceptions. No transloading other than that described in
paragraphs (e) (1) and (2) of this section is allowed except under
extenuating circumstances (such as equipment breakdown) and when
authorized and supervised by an APHIS inspector.
(f) Limited permit. Shipments of avocados must be accompanied by a
limited permit issued by an APHIS inspector in accordance with
Sec. 318.13-4(c) of this subpart. The limited permit will be issued
only if the inspector examines the shipment and determines that the
shipment has been prepared in compliance with the provisions of this
section.
Done in Washington, DC, this 18th day of February 1994.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-4327 Filed 2-24-94; 8:45 am]
BILLING CODE 4310-34-P
