[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18690-18695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10461]
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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. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18690]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 95-068-1]
Importation of Fruits and Vegetables
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to allow, under certain conditions, the cold
treatment of imported fruit upon arrival at the ports of Seattle, WA,
Atlanta, GA, and Gulfport, MS. We have determined that there are
biological barriers at these ports that, along with certain safeguards,
would prevent the introduction of fruit flies and other insect pests
into the United States in the unlikely event that they escape from
shipments of fruit before undergoing cold treatment. We are also
proposing to require that cold treatment facilities at the port of
Wilmington, NC, remain locked during non-working hours. These actions
would facilitate the importation of fruit requiring cold treatment
while continuing to provide protection against the introduction of
fruit flies and other insect pests into the United States.
DATES: Consideration will be given only to comments received on or
before June 28, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-068-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 95-068-1. 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 requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior
Operations Officer, Port Operations, PPQ, APHIS, 4700 River Road Unit
139, Riverdale, MD 20737-1236, (301) 734-8891.
SUPPLEMENTARY INFORMATION:
Background
The Fruits and Vegetables regulations, contained in 7 CFR 319.56
through 319.56-8 (referred to below as ``the regulations''), prohibit
or restrict the importation of fruits and vegetables to prevent the
introduction and dissemination of injurious insects, including fruit
flies, that are new to or not widely distributed in the United States.
The Animal and Plant Health Inspection Service (APHIS) of the U.S.
Department of Agriculture administers these regulations.
Under the regulations, APHIS allows certain fruits to be imported
into the United States if they undergo sustained refrigeration (cold
treatment) sufficient to kill certain insect pests. Cold treatment
temperature and time requirements vary according to the type of fruit
and the pests involved. Detailed cold treatment procedures may be found
in the Plant Protection and Quarantine (PPQ) Treatment Manual, which is
incorporated by reference into the regulations at 7 CFR 300.1.
Most imported fruit that requires cold treatment undergoes cold
treatment in transit to the United States. However, APHIS also allows
imported fruit to undergo cold treatment at an approved cold treatment
facility in either the country of origin or after arrival in the United
States at certain ports designated by APHIS in Sec. 319.56-2d(b)(1) of
the regulations.
Currently, cold treatment in the United States is limited to the
following ports: the port of Wilmington, NC; Atlantic ports north of,
and including, Baltimore, MD; ports on the Great Lakes and St. Lawrence
Seaway; Canadian border ports on the North Dakota border and east of
North Dakota; and, for air shipments, Washington, DC, at Baltimore-
Washington International and Dulles International airports.
Imported fruit may undergo cold treatment at the listed ports other
than Wilmington, NC, because biological barriers, including climatic
conditions, exist to prevent the introduction and establishment of
fruit flies and other insect pests that could escape from shipments of
imported fruit after arrival in the United States. Imported fruit may
also undergo cold treatment at the port of Wilmington, NC, because
APHIS has imposed special conditions regarding cold treatment to
mitigate the risk of the introduction of fruit flies and other insect
pests into the United States (see Sec. 319.56-2d(b)(5)(iv)).
Recently, we received formal requests from the Taiwanese
Government, the City of Atlanta Airport Authority, and the Mississippi
State Port Authority to authorize the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS, respectively, as approved locations for cold
treatment of imported fruit.
Previously Published Notices and Regulations
On November 12, 1993, in response to earlier petitions from
individuals at the ports of Wilmington, NC, and Gulfport, MS, we
published in the Federal Register (58 FR 59953, Docket No. 93-121-1) an
advance notice of proposed rulemaking requesting public comment on
whether we should allow cold treatment at ports in the Southern United
States and in California.
We solicited comments concerning this notice for a 45-day period
ending December 27, 1993. During that period, we received four
comments, three from State governments and one from a grower
organization. Two commenters opposed allowing cold treatment at ports
in the Southern United States and California, arguing that allowing
such treatments would place California and Florida citrus crops at too
great a risk of fruit fly infestation. Another commenter requested that
we perform a detailed pest risk analysis before deciding whether to
allow cold treatment at southern and California ports. Another
commenter supported cold treatment at the port of Wilmington, NC.
We subsequently published a proposed rule in the Federal Register
on May 13, 1994 (59 FR 24968-24971, Docket No. 93-121-2) in which we
proposed to allow imported fruit to be cold treated at the port of
Wilmington, NC, after arrival in the United States. At that time, we
decided to give further consideration to allowing cold treatment at
other ports in the Southern United States and California. In a final
rule published in the Federal Register on August 10, 1994 (59 FR 40794-
40797,
[[Page 18691]]
Docket No 93-121-3), we approved cold treatment, under certain
conditions, at the port of Wilmington, NC.
Proposal of Additional Ports
After performing extensive risk analyses, we are proposing to add
the ports of Seattle, WA, Atlanta, GA, and Gulfport, MS, to the list of
ports in Sec. 319.56-2d that are authorized as approved locations for
cold treatment of imported fruit. This proposal to allow cold treatment
of fruit under certain conditions at the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS, is based, in part, on a document prepared by
APHIS assessing the pest risks associated with allowing cold treatment
of tropical fruit fly host materials at certain United States ports.
The risk mitigation measures discussed in the document are included in
this proposal as requirements for the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS. (Copies of this document may be obtained by
writing to the individual listed under FOR FURTHER INFORMATION
CONTACT.) We have determined that in the areas of these ports proposed
for cold treatment, there are biological barriers that, along with
certain safeguards, would prevent the introduction and establishment of
fruit flies and other insect pests in the unlikely event that they
escape from shipments of fruit before undergoing cold treatment.
Risk Groups
Plant Protection and Quarantine (PPQ), APHIS, has established risk
groups for many ports in the United States. These risk groups
characterize the relative risk, without consideration for mitigating
factors, associated with the movement of tropical fruit fly host
material for cold treatment at these ports in the United States. The
ports have been assigned to one of five risk groups based on a number
of criteria, including the individual port's latitude, microclimate,
immediate host availability, and past fruit fly infestations. The risk
groups are assigned numbers I through V; this number scale represents
an ascending level of risk based on the criteria listed above. Group I
ports consist of East Coast ports north of, and including, Baltimore,
MD. Group II ports consist of the ports of Wilmington, NC, Seattle, WA,
Portland, OR, Atlanta, GA, and Norfolk, VA. Group III ports consist of
the ports of Charleston, SC, Savannah, GA, Port Arthur, TX, and
Galveston/Houston, TX. Group IV ports consist of the ports of Gulfport,
MS, Mobile, AL, New Orleans, LA, Corpus Christi, TX, and Pensacola, FL.
Group V ports consist of the ports of San Diego, CA, San Pedro/Long
Beach, CA, San Francisco, CA, Oakland, CA, Tampa, FL, Miami, FL, West
Palm/Ft. Lauderdale, FL, Cape Canaveral, FL, Jacksonville, FL, Ft.
Meyers, FL, Ft. Pierce, FL, Brownsville, TX, and all Hawaiian ports.
The general requirements for cold treatment found in Sec. 319.56-2d
are designed to mitigate the risk of infestation due to fruit fly
escape from shipments intended for cold treatment at Group I ports.
These requirements include delivering, under the supervision of an
inspector of PPQ, shipments of fruit that require cold treatment to an
approved cold storage warehouse where the shipments will be cold
treated; precooling and refrigerating the shipments of fruit intended
for cold treatment promptly upon arrival at the cold treatment
facility; allowing shipments of fruit that require cold treatment to
leave U.S. Customs custody only under a redelivery bond for cold
treatment; and allowing shipments of fruit that require cold treatment
final release from the U.S. Collector of Customs only after official
notification has been received by the Customs officer that the required
cold treatment has been completed.
For shipments of fruit arriving for cold treatment at the port of
Wilmington, NC, a Group II port, the regulations at Sec. 319.56-
2d(b)(5)(iv) also require that bulk shipments of fruit must arrive in
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies; bulk and containerized shipments of fruit must be cold
treated within the area over which the Bureau of Customs is assigned
the authority to accept entries of merchandise, to collect duties, and
to enforce the various provisions of the customs and navigation laws in
force; and advance reservations for cold treatment must be made prior
to the departure of a shipment from its port of origin.
Each of the ports proposed as an approved location for cold
treatment in this document, the ports of Seattle, WA, Atlanta, GA, and
Gulfport, MS, has been assigned to a risk group other than Group I;
consequently, additional mitigating factors need to be put in place
before cold treatment can occur at any of these ports.
Proposal of Special Conditions for the Ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS
We are proposing to impose additional special conditions regarding
cold treatment at each of the ports proposed as an approved location
for cold treatment that mitigate the risk of the introduction and
establishment of fruit flies and other insect pests. The special
conditions that would be assigned to each port are listed below by
port.
Special Conditions for the Maritime Port of Seattle, WA
The maritime port of Seattle has biological barriers to fruit fly
introduction and establishment in that the port is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping
from a shipment of fruit intended for cold treatment would find
adequate host material for propagation. However, the maritime port of
Seattle, WA, belongs to the Group II list of ports because the area
surrounding this port contains a small variety of fruit-fly host
material and has a longer growing season than Group I ports. Therefore,
in addition to the requirements in Sec. 319.56-2d (b)(5)(i) through
(b)(5)(iii) of the regulations concerning cold treatment, the following
additional requirements would apply to cold treatment conducted at the
maritime port of Seattle, WA:
1. Bulk shipments (those shipments which are stowed and unloaded by
the case or bin) of fruit must arrive in fruit fly-proof packaging that
prevents the escape of adult, larval, or pupal fruit flies.
This condition would ensure that shipments that arrive at the
maritime port of Seattle, WA, in cases or bins would not be exposed in
such a manner as to allow fruit flies or other insect pests to escape
from the shipment.
2. Bulk and containerized shipments of fruit must be cold treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
3. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
[[Page 18692]]
4. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
We believe that the biological barriers and these additional
conditions established for cold treatment at the maritime port of
Seattle, WA, would be adequate to prevent the introduction and
establishment of fruit flies and other insect pests.
Special Conditions for the Airports of Atlanta, GA, and Seattle, WA
The airports of Atlanta, GA, and Seattle, WA, each have biological
barriers to fruit fly introduction and establishment in that neither
port is in a citrus-producing area. This reduces the likelihood that a
fruit fly escaping from a shipment of fruit intended for cold treatment
would find adequate host material for propagation. However, both the
airports of Atlanta, GA, and Seattle, WA, belong to the Group II list
of ports because the areas surrounding these airports contain a small
variety of fruit-fly host material and have longer growing seasons than
Group I ports. Additionally, although fruit that travels to the United
States by ship for cold treatment is regularly chilled during transit,
fruit imported into the United States by aircraft for cold treatment is
not. Therefore, the mitigation measures for the Group II airports of
Atlanta, GA, and Seattle, WA, would be more extensive than the
mitigation measures for Group II maritime ports. As such, in addition
to the requirements in Sec. 319.56-2d(b)(5)(i) through (b)(5)(iii) of
the regulations concerning cold treatment, the following additional
requirements would apply to cold treatment conducted at the airports of
Atlanta, GA, and Seattle, WA:
1. Bulk and containerized shipments of fruit must arrive in fruit
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies.
This condition would ensure that all shipments, including those
that that arrive at these airports in cases or bins, would not be
exposed in such a manner as to allow fruit flies or other insect pests
to escape from the shipment.
2. Bulk and containerized shipments of fruit must be cold treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
3. The cold treatment facility and PPQ must agree in advance on the
route by which shipments are allowed to move between the aircraft on
which they arrived at the port and the cold treatment facility. The
movement of shipments from aircraft to cold treatment facility would
not be allowed until an acceptable route has been agreed upon.
In most instances, the route would be determined by establishing
the shortest route between the aircraft and the cold treatment facility
that does not include an area that contains host material for fruit
flies during the time of year that the region experiences its most
abundant amount of host material for fruit flies. Then, that route
would be used throughout the year to convey shipments from aircraft to
cold treatment facility. This predetermined route would reduce the
amount of time that a shipment would have to wait before undergoing
cold treatment and would reduce the risk that any fruit flies in the
shipments would come into contact with host material en route to cold
treatment.
4. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
5. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
6. Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
This condition would act as a general safeguard. We propose this
condition as an extra layer of defense that would trap any fruit flies
within the facility or within the facility's environs, in the unlikely
event that a fruit fly manages to survive past the stage of pupation in
the cold treatment facility.
7. The cold treatment facility must have contingency plans,
approved by the Deputy Administrator of PPQ, for handling fruit,
including the ability to destroy or dispose of fruit safely.
This condition would ensure that, in the event that a shipment
cannot be cold treated promptly or properly, the contents of the
shipment could be safely treated by alternative means, destroyed, or
disposed of so that fruit flies and other insect pests would not have
the opportunity to escape. Examples of adequate contingency plans would
include the ability to incinerate fruit, to bury fruit, or to re-export
fruit.
We believe that the biological barriers and these additional
conditions established for cold treatment at the airports of Atlanta,
GA, and Seattle, WA, would be adequate to prevent the introduction and
establishment of fruit flies and other plant pests.
Special Conditions for the Port of Gulfport, MS
The maritime port of Gulfport, MS, has biological barriers to fruit
fly introduction and establishment in that it is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping
from a shipment of fruit intended for cold treatment would find
adequate host material for propagation. However, the port of Gulfport
belongs to the Group IV list of ports because the area surrounding this
port, among other things, contains a wider variety and greater quantity
of fruit-fly host material than Group I, II, or III ports and has a
lengthy growing season due to its southern location. Therefore, in
addition to the requirements in Sec. 319.56-2d(b)(5)(i) through
(b)(5)(iii) of the regulations concerning cold treatment, the following
additional requirements would apply to cold treatment conducted at the
maritime port of Gulfport, MS:
1. All fruit entering the port for cold treatment must move in
maritime containers. No bulk shipments (those shipments which are
stowed and unloaded by the case or bin) would be allowed at the port of
Gulfport, MS.
This condition would ensure that imported fruit arriving at the
port of Gulfport, MS, for cold treatment would not be exposed to the
outdoors. The shipping container would insulate the fruit, thereby
helping to keep the fruit chilled during unloading, would prevent
leakage of the shipment, and would serve as a barrier to fruit fly
escape from shipments of untreated fruit.
[[Page 18693]]
2. Within the container, the fruit intended for cold treatment must
be enclosed in fruit fly-proof packaging that prevents the escape of
adult, larval, or pupal fruit flies.
This condition would ensure that containerized shipments would be
packaged in such a manner as to prevent fruit flies or other insect
pests from escaping from the shipment when the container is opened.
This condition would provide an extra barrier to fruit fly escape from
a shipment of untreated fruit.
3. Containerized shipments of fruit arriving at the port must be
cold treated within the area over which the Bureau of Customs is
assigned the authority to accept entries of merchandise, to collect
duties, and to enforce the various provisions of the customs and
navigation laws in force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
4. The cold treatment facility and PPQ must agree in advance on the
route by which shipments are allowed to move between the vessel on
which they arrived at the port and the cold treatment facility. The
movement of shipments from vessel to cold treatment facility would not
be allowed until an acceptable route has been agreed upon.
In most instances, the route would be determined by establishing
the shortest route between the vessel and the cold treatment facility
that does not include an area that contains host material for fruit
flies during the time of year that the region experiences its most
abundant amount of host material for fruit flies. Then, that route
would be used throughout the year to convey shipments from vessel to
cold treatment facility. This predetermined route would reduce the
amount of time that a shipment would have to wait before undergoing
cold treatment and would reduce the risk that any fruit flies in the
shipments would come into contact with host material en route to cold
treatment.
5. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
6. Devanning, the unloading of fruit from containers into the cold
treatment facility, must adhere to the following requirements: (1) All
containers must be unloaded within the cold treatment facility; and (2)
untreated fruit may not be exposed to the outdoors under any
circumstances.
Because of the southern location of the port of Gulfport, MS, we
believe that this condition would be a necessary mitigating factor at
this port. This condition would eliminate the possibility of untreated
fruit being unloaded and waiting for cold treatment outside of the cold
treatment facility itself.
If fruit intended for cold treatment was removed from its shipping
container outside of the cold treatment facility, there would be an
increased risk of fruit fly escape due to untreated fruit warming up to
temperatures that would allow the insect pests that may be in the fruit
to become more active and possibly to escape when the fly-proof
packaging is removed from the shipment. Our proposal to require
devanning inside of the cold treatment facility would ensure that all
fruit that requires cold treatment remains in a cool environment.
7. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
8. Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
This condition would act as a general safeguard. We propose this
condition as an extra layer of defense that would trap any fruit flies
within the facility or within the facility's environs, in the unlikely
event that a fruit fly manages to survive past the stage of pupation in
the cold treatment facility.
9. During cold treatment, a backup system must be available to cold
treat the shipments of fruit should the primary cold room malfunction.
The facility must also have one or more reefers (cold holding rooms)
and methods of identifying lots of treated and untreated fruit.
This condition would ensure that, in the event that the primary
cold treatment system fails, additional equipment is on hand at the
cold treatment facility to perform cold treatments on shipments of
fruit. Cold holding rooms would be necessary to ensure that shipments
of fruit remain cool during any waiting period that may ensue from a
malfunction of the primary cold room. The identification of shipments
to determine which lots have been treated and which lots need to be
treated would eliminate the possibility of treated fruit being
commingled with untreated fruit and thereby further reduce the
possibility of fruit flies or other insect pests escaping from the cold
treatment facility.
10. The cold treatment facility must have the ability to conduct
methyl bromide fumigations on site. Therefore, the cold treatment
facility must have fumigation equipment approved by the Deputy
Administrator of PPQ and a site for conducting fumigation on the
premises.
This condition would act as an additional contingency plan to treat
fruit entering the port of Gulfport, MS. As the risk of fruit fly
infestation is greater at Gulfport, MS, than at the other ports
proposed for cold treatment, we have determined that an extra layer of
protection should be provided by requiring methyl bromide fumigation
capabilities as an alternative means of eliminating pests from
shipments of fruit. The criteria for the approval of fumigation
equipment can be found in the PPQ Treatment Manual.
With respect to methyl bromide fumigation, the Environmental
Protection Agency published a notice of final rulemaking in the Federal
Register on December 10, 1993 (58 FR 65018-65082) which freezes the
production of methyl bromide at 1991 levels and requires the phasing
out of domestic use of methyl bromide by the year 2001. APHIS is
studying the effectiveness and environmental acceptability of
alternative treatments to prepare for the eventual unavailability of
methyl bromide fumigation. Our current proposal assumes the continued
availability of methyl bromide for use as a fumigant for at least the
next few years.
11. The cold treatment facility must have contingency plans,
approved by the Deputy Administrator of PPQ, for safely destroying or
disposing of fruit.
This condition would ensure that, in the event a shipment cannot be
cold treated promptly or properly, the contents of the shipment could
be safely destroyed or disposed of so that fruit flies and other plant
pests would not have the opportunity to escape. Examples of adequate
contingency plans would include the ability to incinerate fruit, to
bury fruit, or to re-export fruit.
We believe that the biological barriers and these additional
conditions
[[Page 18694]]
established for cold treatment at the port of Gulfport, MS, would be
adequate to prevent the introduction and establishment of fruit flies
and other plant pests.
Proposal of Special Condition for the Port of Wilmington, NC
We are also proposing to require that cold treatment facilities at
the port of Wilmington, NC, remain locked during non-working hours as
another special condition to cold treatment at the port of Wilmington,
NC. We have determined that this safeguard, without interfering with
daily operations at the port, would help ensure that unauthorized
persons do not have access to untreated fruit and, therefore, cannot
remove untreated fruit from the cold treatment facility.
Miscellaneous
We are also proposing to make minor editorial changes for clarity
and consistency. We propose to amend the language in Sec. 319.56-
2d(b)(5)(iv)(B) to clarify that shipments coming in for cold treatment
currently consist only of fruit. Section 319.56-2d(b)(5)(iv)(B) states
that the shipments intended for cold treatment consist of fruits and
vegetables, but, presently, only certain fruits from certain countries
are approved for cold treatment.
We also propose to revise Sec. 319.56-2x(b) to update the list of
ports that are approved as locations for cold treatment.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
For this action, the Office of Management and Budget has waived its
review process required by Executive Order 12866.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this proposed rule on 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.
Under the Plant Quarantine Act and the Federal Plant Pest Act (7
U.S.C. 150dd, 150ee, 150ff, 151-167), the Secretary of Agriculture is
authorized to regulate the importation of fruits and vegetables to
prevent the introduction of injurious plant pests.
This proposed rule would amend the regulations governing the
importation of fruits and vegetables by allowing, under certain
conditions, the cold treatment of imported fruits upon arrival at the
ports of Gulfport, MS, Atlanta, GA, and Seattle, WA. Modern cold
treatment facilities have been or are in the process of being
constructed at each of these ports.
Approximately 585.4 million kilograms of fresh fruits and
vegetables were imported into the United States through the ports of
Gulfport, MS, Atlanta, GA, and Seattle, WA, during fiscal year 1994.
The port of Gulfport, MS, handled about 98 percent of the total fresh
fruit and vegetable imports for these ports. The ports of Atlanta, GA,
and Seattle, WA, handled 0.25 and 1.75 percent, respectively, of the
total fresh fruit and vegetable imports for these three ports. During
fiscal year 1994, approximately 550,330 kilograms (less than one-tenth
of one percent) of the total fresh fruit imports for these ports were
cold treated in the country of origin or in transit to the United
States and, if these ports had been approved for cold treatment, would
have been eligible for cold treatment upon arrival in the United
States. Should these ports be approved for cold treatment, we expect
that an additional 20 million kilograms of new and rerouted fresh
fruits would be imported through and cold treated at these ports each
year.
According to the Small Business Administration, a ``small'' entity
involved in the wholesale trade of fresh fruits is one that employs no
more than 100 people. Currently, there are 4,388 ``small'' wholesale
importers of fresh fruits in the United States. Use of on-site cold
treatment facilities at the ports of Seattle, WA, Atlanta, GA, and
Gulfport, MS, may slightly reduce transportation costs for foreign
fruit exporters, which, in turn, may slightly reduce transportation
costs for domestic importers and, ultimately, may slightly reduce the
cost of certain fruits for U.S. consumers. We expect, however, that
these reductions in costs would be insignificant.
The alternative to this proposed rule was to make no changes in the
regulations. After consideration, we rejected this alternative because
it appears that, with the safeguards proposed, the cold treatment of
fruit may be conducted at any of the ports proposed in this document
without significant risk of introducing fruit flies or other injurious
plant pests.
Executive Order 12778
This proposed rule would allow cold treatment of certain imported
fruits to be conducted at the ports of Gulfport, MS, Atlanta, GA, and
Seattle, WA. If this proposed rule is adopted, State and local laws and
regulations regarding the importation of fruits under this rule would
be preempted while the fruits are in foreign commerce. Fresh fruits are
generally imported for immediate distribution and sale to the consuming
public, and would remain in foreign commerce until sold to the ultimate
consumer. The question of when foreign commerce ceases in other cases
must be addressed on a case-by-case basis. If this proposed rule is
adopted, no retroactive effect will be given to this rule, and this
rule will not require administrative proceedings before parties may
file suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by
reference, Nursery Stock, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, 7 CFR part 319 would be amended as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 would continue to read as
follows:
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).
2. Section 319.56-2d would be amended as follows:
a. In paragraph (b)(1), by revising the second sentence to read as
set forth below.
b. By revising paragraph (b)(5)(iv) to read as set forth below.
c. By adding new paragraphs (b)(5)(v) and (b)(5)(vi) to read as set
forth below.
Sec. 319.56-2d Administrative instructions for cold treatments of
certain imported fruits.
* * * * *
(b) * * *
(1) * * * If not so refrigerated, the fruit must be both precooled
and refrigerated after arrival only in cold storage warehouses approved
by the Deputy Administrator and located at the following ports:
Atlantic ports north of, and including, Baltimore, MD; ports on the
Great Lakes and St. Lawrence Seaway; Canadian border ports on the
[[Page 18695]]
North Dakota border and east of North Dakota; the maritime ports of
Wilmington, NC, Seattle, WA, and Gulfport, MS; Seattle-Tacoma
International Airport, Seattle, WA; Hartsfield-Atlanta International
Airport, Atlanta, GA; and Baltimore-Washington International and Dulles
International airports, Washington, DC. * * *
* * * * *
(5) * * *
(iv) Special requirements for the maritime ports of Wilmington, NC,
and Seattle, WA. Shipments of fruit arriving at the maritime ports of
Wilmington, NC, and Seattle, WA, for cold treatment, in addition to
meeting all of the requirements in paragraphs (b)(5)(i) through
(b)(5)(iii) of this section, must meet the following special
conditions:
(A) Bulk shipments (those shipments which are stowed and unloaded
by the case or bin) of fruit must arrive in fruit fly-proof packaging
that prevents the escape of adult, larval, or pupal fruit flies.
(B) Bulk and containerized shipments of fruit must be cold-treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
(C) Advance reservations for cold treatment space must be made
prior to the departure of a shipment from its port of origin.
(D) The cold treatment facility must remained locked during non-
working hours.
(v) Special requirements for the airports of Atlanta, GA, and
Seattle, WA. Shipments of fruit arriving at the airports of Atlanta,
GA, and Seattle, WA, for cold treatment, in addition to meeting all of
the requirements in paragraphs (b)(5)(i) through (b)(5)(iii) of this
section, must meet the following special conditions:
(A) Bulk and containerized shipments of fruit must arrive in fruit
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies.
(B) Bulk and containerized shipments of fruit arriving for cold
treatment must be cold treated within the area over which the Bureau of
Customs is assigned the authority to accept entries of merchandise, to
collect duties, and to enforce the various provisions of the customs
and navigation laws in force.
(C) The cold treatment facility and Plant Protection and Quarantine
must agree in advance on the route by which shipments are allowed to
move between the aircraft on which they arrived at the airport and the
cold treatment facility. The movement of shipments from aircraft to
cold treatment facility will not be allowed until an acceptable route
has been agreed upon.
(D) Advance reservations for cold treatment space must be made
prior to the departure of a shipment from its port of origin.
(E) The cold treatment facility must remained locked during non-
working hours.
(F) Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
(G) The cold treatment facility must have contingency plans,
approved by the Deputy Administrator, for safely destroying or
disposing of fruit.
(vi) Special requirements for the port of Gulfport, MS. Shipments
of fruit arriving at the port of Gulfport, MS, for cold treatment, in
addition to meeting all of the requirements in paragraphs (b)(5)(i)
through (b)(5)(iii) of this section, must meet the following special
conditions:
(A) All fruit entering the port for cold treatment must move in
maritime containers. No bulk shipments (those shipments which are
stowed and unloaded by the case or bin) are permitted at the port of
Gulfport, MS.
(B) Within the container, the fruit intended for cold treatment
must be enclosed in fruit fly-proof packaging that prevents the escape
of adult, larval, or pupal fruit flies.
(C) All shipments of fruit arriving at the port for cold treatment
must be cold treated within the area over which the Bureau of Customs
is assigned the authority to accept entries of merchandise, to collect
duties, and to enforce the various provisions of the customs and
navigation laws in force.
(D) The cold treatment facility and Plant Protection and Quarantine
must agree in advance on the route by which shipments are allowed to
move between the vessel on which they arrived at the port and the cold
treatment facility. The movement of shipments from vessel to cold
treatment facility will not be allowed until an acceptable route has
been agreed upon.
(E) Advance reservations for cold treatment space at the port must
be made prior to the departure of a shipment from its port of origin.
(F) Devanning, the unloading of fruit from containers into the cold
treatment facility, must adhere to the following requirements:
(1) All containers must be unloaded within the cold treatment
facility; and
(2) Untreated fruit may not be exposed to the outdoors under any
circumstances.
(G) The cold treatment facility must remained locked during non-
working hours.
(H) Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
(I) During cold treatment, a backup system must be available to
cold treat the shipments of fruit should the primary system
malfunction. The facility must also have one or more reefers (cold
holding rooms) and methods of identifying lots of treated and untreated
fruits.
(J) The cold treatment facility must have the ability to conduct
methyl bromide fumigations on-site.
(K) The cold treatment facility must have contingency plans,
approved by the Deputy Administrator, for safely destroying or
disposing of fruit.
* * * * *
3. In Sec. 319.56-2x(b), the first sentence would be revised to
read as follows:
Sec. 319.56-2x Administrative instructions; conditions governing the
entry of certain fruits and vegetables for which treatment is required.
* * * * *
(b) If treatment has not been completed before the fruits and
vegetables arrive in the United States, fruits and vegetables listed
above and requiring treatment for fruit flies may arrive in the United
States only at the following ports: Atlantic ports north of, and
including, Baltimore, MD; ports on the Great Lakes and St. Lawrence
Seaway; Canadian border ports on the North Dakota border and east of
North Dakota; the maritime ports of Wilmington, NC, Seattle, WA, and
Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA;
Hartsfield-Atlanta International Airport, Atlanta, GA; and Baltimore-
Washington International and Dulles International airports, Washington,
DC. * * *
Done in Washington, DC, this 23rd day of April 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-10461 Filed 4-26-96; 8:45 am]
BILLING CODE 3410-34-P
