[Federal Register Volume 61, Number 176 (Tuesday, September 10, 1996)]
[Rules and Regulations]
[Pages 47663-47667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22941]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 319
[Docket No. 95-068-2]
Importation of Fruits and Vegetables
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are allowing, 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, 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 requiring that cold
treatment facilities at the port of Wilmington, NC, remain locked
during non-working hours. These actions will 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.
EFFECTIVE DATE: October 10, 1996.
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.
On April 29, 1996, we published in the Federal Register (61 FR
18690-18695, Docket No. 95-068-1) a proposal
[[Page 47664]]
to amend the regulations by allowing cold treatment of imported fruit
upon arrival at the ports of Seattle, WA, Atlanta, GA, and Gulfport,
MS.
We solicited comments concerning our proposal for 60 days ending
June 28, 1996. We received 10 comments by that date. They were from
customs brokers, industry representatives, and representatives of State
governments. Six commenters supported the proposed rule in its
entirety. The remaining four commenters had concerns about portions of
the proposed rule. Their concerns are discussed below by topic.
The Maritime Port of Seattle, WA
Two commenters recommended that, in addition to the special
conditions outlined for the maritime port of Seattle, WA, in the
proposed rule, we also require contingency plans and trap monitoring at
this port, as we proposed to require for the airports of Atlanta, GA,
and Seattle, WA, and for the port of Gulfport, MS, to reduce further
the slight possibility that a fruit fly could escape from the cold
treatment facility and could, particularly during summer months, find a
suitable microhabitat for colonization. We agree that contingency plans
and trap monitoring at the maritime port of Seattle, WA, will help
prevent the introduction and establishment of fruit flies near the
port, as they will at the other ports. Therefore, we are adding the
following special conditions to cold treatment at the maritime port of
Seattle, WA:
1. 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 will act as a general safeguard. We are requiring
this condition as an extra layer of defense that will 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.
2. The cold treatment facility must have contingency plans,
approved by the Deputy Administrator of Plant Protection and Quarantine
(PPQ), for handling fruit, including the ability to destroy or dispose
of fruit safely.
This condition will ensure that, in the event that a shipment
cannot be cold treated promptly or properly, the contents of the
shipment can be safely treated by alternative means, destroyed, or
disposed of so that fruit flies and other insect pests will not have
the opportunity to escape. Examples of adequate contingency plans
include the ability to incinerate fruit, to bury fruit, or to re-export
fruit.
These additional special conditions, along with the conditions
outlined in the proposed rule for the maritime port of Seattle, WA,
will help 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 at the maritime
port of Seattle, WA.
The Airport of Atlanta, GA, and the Maritime Port of Gulfport, MS
One commenter expressed concern about the temperate climates in
which the airport of Atlanta, GA, and the maritime port of Gulfport,
MS, are located. We recognize that these ports are located in areas
that experience warmer winter temperatures than the other areas where
cold treatment is conducted. However, these ports are not located near
commercial citrus-growing areas or other substantial sources of fruit
fly host material. We believe that the safeguards outlined in the
proposed rule are sufficient to prevent the introduction and
establishment of fruit flies and other insect pests from shipments of
fruit and vegetables intended for cold treatment. Therefore, we are
making no changes to the proposed rule in response to this comment.
Bulk Shipments
One commenter suggested that we prohibit bulk shipments (those
shipments which are stowed and unloaded by the case or bin) of fruit
and vegetables intended for cold treatment into the maritime port of
Seattle, WA, and the airports of Seattle, WA, and Atlanta, GA. The
commenter recommended that we instead require that all shipments
entering these ports for cold treatment be packed in containers in
order to keep the fruit chilled, limit any exposure to the outdoors,
prevent leakage, and serve as a physical barrier to fruit fly escape.
Based on our experience enforcing the regulations, it is extremely
rare, particularly at an airport, for shipments of fruit to wait for
extended periods of time for cold treatment. Shipments normally move
very quickly from the vessel or airplane into the cold treatment
facility for treatment. To help ensure prompt treatment of shipments,
we require that at all ports approved as locations for cold treatment,
advance reservations for cold treatment space be made prior to the
departure of a shipment from its port of origin. This condition ensures
the expeditious cold treatment of the fruit, limits the shipment's
exposure to the outdoors, reduces the likelihood of leakage from a
shipment, and minimizes the risk of fruit flies maturing in
deteriorating fruit. In addition, though we are allowing bulk shipments
of fruit intended for cold treatment to enter the maritime port of
Seattle, WA, and the airports of Seattle, WA, and Atlanta, GA, we are
requiring these bulk shipments to arrive in fruit fly-proof packaging
that prevents the escape of adult, larval, or pupal fruit flies. We
believe that this condition, and the other special conditions for these
ports, are sufficient to ensure that shipments that arrive at these
ports in cases or bins will not be exposed in such a manner as to allow
fruit flies or other insect pests to escape from a shipment. Therefore,
we are making no changes to the proposed rule in response to this
comment.
Security Measures
One commenter recommended that our proposed security measures for
all of the ports be expanded. The commenter suggested that each cold
treatment facility have security cameras, that each shipment of fruit
be accompanied by APHIS personnel, and that each person living within a
4-mile radius of the cold treatment facility be notified that the
facility is holding fruit that may contain exotic plant pests.
We developed special conditions for cold treatment at each port
proposed as an approved location for cold treatment so that there would
be a multi-layered defense against the escape of fruit flies or other
insect pests from shipments of fruit intended for cold treatment. These
special conditions are reinforced by the standard requirements for cold
treatment, located at Sec. 319.56-2d of the regulations, at all ports
that are approved locations for cold treatment. The standard
requirements, among other things, require that shipments of fruit
intended for cold treatment in the United States must arrive in the
United States at a temperature sufficiently low to prevent insect
activity and then must be promptly precooled and refrigerated in the
approved cold storage warehouse where cold treatment will occur. In
addition, the standard requirements provide that fruit intended for
cold treatment in the United States be delivered under the supervision
of an inspector of PPQ, APHIS, to the approved cold storage warehouse
where cold treatment will occur. APHIS officials monitor shipments of
fruit intended for cold treatment in the United States through
inspections of the shipments at the port of entry and through
inspections of the automatic, continuous temperature records
[[Page 47665]]
required for each refrigeration. At ports where special conditions
apply to cold treatment, APHIS officials monitor adherence to required
safeguards as well. Consequently, we feel that we have the necessary
security measures in place to prevent the introduction of exotic plant
pests into the United States. Therefore, we are making no changes to
the proposed rule in response to this comment.
Cold Treatment
One commenter stated that the United States should not allow the
cold treatment of foreign fruits and vegetables within its borders
because of the pest risk to American crops. The same commenter
expressed concern that allowing additional ports to be locations for
cold treatment would require extra APHIS resources that may not be
available. The commenter suggested that we require the costs of cold
treatment, including the staffing and operation of the cold treatment
facility, to be borne by the exporting party.
Based on our experience enforcing the regulations, we believe that
we have the necessary safeguards in place to conduct cold treatment in
the United States without presenting an unnecessary risk of the
introduction or establishment of exotic plant pests.
Further, we have adequate personnel and other resources at the
ports proposed as approved locations for cold treatment to conduct
careful monitoring of cold treatment operations and to ensure that the
provisions of the regulations are upheld. Regarding the costs of cold
treatment, it is routine for importers of fresh fruit to bear the
expense of cold treatment. Therefore, we are making no changes to the
proposed rule in response to these comments.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule with the changes discussed in this document.
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. 604, we have performed a Final
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this final rule on small entities.
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 rule amends 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.
This action will 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.
In our proposal, we solicited comments on the potential effects of
the proposed action on small entities. In particular, we sought data
and other information to determine the number and kind of small
entities that may incur benefits or costs from the implementation of
the proposed rule. We received no comments on the Initial Regulatory
Flexibility Analysis contained in the proposed rule.
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 will be eligible for cold treatment upon arrival in the
United States. We expect that an additional 20 million kilograms of new
and rerouted fresh fruits will 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 will be insignificant.
The alternative to this rule was to make no changes in the
regulations. After consideration, we rejected this alternative because
it appears that, with the safeguards contained in this rule, the cold
treatment of fruit may be conducted at any of the listed ports without
significant risk of introducing fruit flies or other injurious plant
pests.
Executive Order 12988
This rule allows cold treatment of certain imported fruits to be
conducted at the ports of Gulfport, MS, Atlanta, GA, and Seattle, WA.
State and local laws and regulations regarding the importation of
fruits under this rule will be preempted while the fruits are in
foreign commerce. Fresh fruits are generally imported for immediate
distribution and sale to the consuming public, and will 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. 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 rule contains no new information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Regulatory Reform
This action is part of the President's Regulatory Reform
Initiative, which, among other things, directs agencies to remove
obsolete and unnecessary regulations and to find less burdensome ways
to achieve regulatory goals.
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 is amended as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 continues 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).
[[Page 47666]]
2. Section 319.56-2d is 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), (b)(5)(vi), and (b)(5)(vii)
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 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 port of Wilmington, NC.
Shipments of fruit arriving at the maritime port of Wilmington, NC, 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 remain locked during non-
working hours.
(v) Special requirements for the maritime port of Seattle, WA.
Shipments of fruit arriving at the maritime port of 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 remain locked during non-
working hours.
(E) 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.
(F) 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 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 remain 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.
(vii) 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.
[[Page 47667]]
(G) The cold treatment facility must remain 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 is 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 3rd day of September 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-22941 Filed 9-9-96; 8:45 am]
BILLING CODE 3410-34-P
