[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11678]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 319

[Docket No. 93-121-2]

 

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 fruits upon arrival at the port of Wilmington, 
NC. We have determined that in the Wilmington, NC, area, there are 
climatic and biological barriers that are adequate to prevent the 
introduction of certain plant pests into the United States in the event 
they escape from shipments of fruit before undergoing cold treatment. 
We are also proposing to delete cold treatments in the regulations and 
replace them with a reference to cold treatments in the Plant 
Protection and Quarantine Treatment Manual, which is incorporated by 
reference.

DATES: Consideration will be given only to comments received on or 
before June 13, 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. 93-121-2. 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. Victor Harabin, Head, Permit Unit, 
Port Operations, Plant Protection and Quarantine, APHIS, USDA, room 
631, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782; (301) 
436-8645.

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 refrigeration period requirements vary according to the 
type of fruit and the pests involved.
    Most imported fruit that requires cold treatment undergoes cold 
treatment in transit to the United States. However, APHIS allows 
imported fruit to undergo cold treatment after arrival in the United 
States at certain ports designated by APHIS.
    Currently, cold treatment is limited to ports in the northern 
United States because APHIS has determined that insect pests escaping 
from shipments of imported fruit after arrival in the United States 
would be unable to survive winter weather conditions in the north. The 
following ports are currently authorized by APHIS to conduct cold 
treatment on imported fruit: 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.
    Recently, we received petitions from individuals at the ports of 
Wilmington, NC, and Gulfport, MS, requesting that we amend the 
regulations to allow cold treatment to be conducted at these ports. On 
November 12, 1993, in response to these petitions, 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 on December 27, 1993. During that period, we received four 
comments, three from State governments and one from a grower 
organization. Two comments 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 comment requested that we 
perform a detailed pest-risk analysis before deciding whether to allow 
cold treatment at southern and California ports. Another comment 
supported allowing cold treatment at the port of Wilmington, NC.
    While we are still considering whether to allow cold treatment at 
other ports in the Southern United States and California, we are now 
proposing to allow cold treatment of certain fruit, under certain 
conditions, at the port of Wilmington, NC. We have determined that in 
the Wilmington, NC, area, there are climatic and biological barriers 
adequate to prevent introduction of certain plant pests into the United 
States in the event they escape from shipments of fruit before 
undergoing cold treatment. Also, we are proposing to impose additional 
special conditions regarding cold treatment at Wilmington, NC, that 
would further reduce the risk of fruit fly introduction.
    In addition to meeting the requirements in Sec. 319.56-2d of the 
regulations regarding cold treatment, the port of Wilmington, NC, cold 
treatment facilities would be required to operate under the following 
additional special conditions:
    1. Bulk shipments (those shipments which are stowed and unloaded by 
the case or bin) of fruit arriving for cold treatment must be packaged 
in fly-proof packaging that prevents the escape of adult, larval, or 
pupal fruit flies.
    2. Bulk and containerized shipments of fruit arriving at the port 
of Wilmington, NC, for cold treatment must be cold-treated within the 
port, that is, 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.
    3. Advance reservations for cold treatment space at the port of 
Wilmington, NC, must be made prior to the departure of a shipment from 
its port of origin.
    We believe these requirements would reduce the risk of fruit fly 
introduction into the United States in the event infested shipments of 
fruit entered the port of Wilmington, NC.

Draft Risk Assessment Regarding Cold Treatment

    This proposal to allow cold treatment of fruit under certain 
conditions at the port of Wilmington, NC, is based, in part, on a draft 
document, prepared by APHIS, assessing the pest risks associated with 
allowing cold treatment of tropical fruit fly host materials at certain 
United States ports. Some of the risk mitigation measures discussed in 
the draft are included in this proposal as requirements for the port of 
Wilmington, NC. Copies of this draft document may be obtained from Mr. 
Victor Harabin at the address listed under FOR FURTHER INFORMATION 
CONTACT.

Plant Protection and Quarantine (PPQ) Treatment Manual

    We would revise the PPQ Treatment Manual, which has been 
incorporated by reference into the Code of Federal Regulations at 7 CFR 
300.1, to reflect the addition of Wilmington, NC, to the list of ports 
where cold treatment of imported fruits can be conducted, under certain 
conditions, upon arrival.

Miscellaneous

    We are also proposing to replace the four cold treatment schedules 
currently listed in Sec. 319.56-2d(a) with a single reference to the 
Plant Protection and Quarantine (PPQ) Treatment Manual, which is 
incorporated by reference at 7 CFR 300.1. The cold treatments listed in 
the PPQ treatment manual are applicable for any fruit required to be 
cold treated under Sec. 319.56-2d of the regulations.
    Also as a nonsubstantive editorial change, we are proposing to 
remove and reserve the regulations under Sec. 319.56-2q, regarding 
conditions governing the entry into the United States of pummelo from 
Israel, and to add pummelo from Israel to the list, under Sec. 319.56-
2x, of fruits and vegetables requiring treatment as a condition of 
entry into the United States. This change would simplify the 
regulations by placing pummelo from Israel on a list of commodities 
with similar entry requirements, but would not revise current 
requirements concerning the entry into the United States of pummelo 
from Israel.
    We are also proposing to make other nonsubstantive changes to the 
regulations for the sake of clarity.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for purposes of 
Executive Order 12866, and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to allow, under certain conditions, cold treatment 
of imported fruit upon arrival at the port of Wilmington, NC. As a 
result of this proposal, a number of different fruits could be imported 
into Wilmington, NC. Specifically, officials of the North Carolina 
State Ports Authority in Wilmington, NC, anticipate that apples, 
grapes, and pears from Argentina, Brazil, and South Africa would be 
imported and cold treated at the port of Wilmington, NC.
    Approximately 20 million pounds of each fruit could be imported 
annually into Wilmington, NC, as a result of this rule, though we 
anticipate the amount would be much smaller. While some of the fruit 
arriving at Wilmington, NC, would be imported in addition to the 
present volume of annual imports into the United States, some merely 
would be shipments diverted from other ports also approved to conduct 
cold treatment on arrival. In the following analysis of the potential 
impact of this action on domestic producers of apples, grapes and 
pears, in order to demonstrate the greatest possible economic impact, 
we have assumed that the maximum amount of fruit would be imported into 
Wilmington, NC, for cold treatment, and further, that those commodities 
would be imported in addition to the present volume of annual imports 
into the United States.
    Also in the following analysis, we have used published price 
flexibilities to estimate the potential economic effects of allowing 
apples, grapes, and pears to be cold treated at Wilmington, NC; 
flexibilities are used to estimate relationships between changes in 
supply and subsequent changes in price.

Apples

    In 1987, 36,718 farms in the United States, of which 1,186 were in 
North Carolina, harvested apples. Although it is not known how many of 
these farms could be classified as small entities (annual gross 
receipts of $0.5 million or less, according to Small Business 
Administration (SBA) size standards), it is likely that most would. In 
1992, domestic farms produced almost 5.78 billion pounds of apples for 
the fresh market, with an estimated value of $1.13 billion.
    If the volume of apples imported into Wilmington, NC, for cold 
treatment were to reach 20 million pounds, it would constitute about 
7.5 percent of current total imports into the United States, about 0.35 
percent of current domestic production and about 0.33 percent of the 
current total apple supply in the United States (domestic and imports).
    Assuming that a 0.33 percent increase in the supply of apples would 
lead to a decrease of about 0.20 percent in the domestic price of 
apples (using a price flexibility for apples of -0.590, based on all 
Eastern States' sales of North Carolina apples), we estimate that this 
increase in supply would result in a price decrease of about $0.038 per 
hundredweight (cwt), or $0.00038 per pound, from an original price of 
$0.195 per pound. As a result of the price decrease, there could be a 
decrease in total revenue to U.S. apple producers of about $2.20 
million, which is roughly 0.20 percent of the original total revenue of 
$1.13 billion. We anticipate, therefore, that allowing apples to be 
cold treated at Wilmington, NC, would not have a significant economic 
impact on domestic producers.

Grapes

    In 1987, 23,236 farms in the United States, of which 286 were in 
North Carolina, harvested apples. In 1992 domestic farms produced about 
1.54 billion pounds of grapes for the fresh market, with an estimated 
value of $327 million. Although it is not known how many of these farms 
could be classified as small entities (annual gross receipts of $0.5 
million or less, according to SBA size standards), it is likely that 
most would.
    If the volume of grapes to be imported were to reach 20 million 
pounds, it would constitute about 2.9 percent of current total imports 
to the United States, about 1.3 percent of current domestic production 
and about 0.89 percent of the current total grape supply in the United 
States (domestic and imports).
    Assuming that a 0.89 percent increase in the supply of grapes would 
lead to a decrease of about 0.88 percent in the domestic price of 
grapes (using a price flexibility for California grapes of -0.981), we 
estimate that this increase in supply would result in a price decrease 
of about $3.73 per ton, or $0.0019 per pound, from an original price of 
$425.62 per ton. As a result of the price decrease, there could be a 
decrease in total revenue to U.S. grape producers of about $2.9 
million, which is roughly 0.88 percent of the original total revenue of 
$327 million. We anticipate, therefore, that allowing grapes to be cold 
treated at Wilmington, NC, would not have a significant economic impact 
on domestic producers.

Pears

    In 1987, 10,092 farms in the United States, 88 of which were in 
North Carolina, harvested apples. In 1992, domestic farms produced 
about 890 million pounds of pears for the fresh market, with an 
estimated value of $168 million. Although it is not known how many of 
these farms could be classified as small entities (annual gross 
receipts of $0.5 million or less, according to SBA size standards), it 
is likely that most would.
    If the volume of pears to be imported were to reach 20 million 
pounds, it would constitute about 15.4 percent of current total imports 
to the United States, about 2.2 percent of current domestic production 
and about 2.0 percent of the current total pear supply in the United 
States (domestic and imports).
    Assuming that a 2.0 percent increase in the supply of pears would 
lead to a decrease of about 1.2 percent in the domestic price of grapes 
(using a price flexibility for California pears of -0.609), we estimate 
that this increase in supply would result in a price decrease of about 
$4.51 per ton, or $0.0023 per pound, from an original price of $377.61 
per ton. As a result of the price decrease, there could be a decrease 
in total revenue to U.S. pear producers of about $2.0 million, which is 
roughly 1.19 percent of the original total revenue of $168 million. We 
anticipate, therefore, that allowing pears to be cold treated at 
Wilmington, NC, would not have a significant economic impact on 
domestic producers.
    Therefore, in light of the preceding analyses (which estimate 
greatest possible, and thus highly unlikely, economic effects), as well 
as our expectation that most imports of fruit to Wilmington, NC, for 
cold treatment would occur during the off-season for domestic 
production, we anticipate that this proposal would not have a 
significant economic impact on domestic producers of apples, grapes, 
and pears.
    Furthermore, we anticipate that allowing cold treatment at the port 
of Wilmington, NC, could have beneficial economic effects. Importers 
who routinely transport fruit to the Southeastern United States could 
benefit from this action due to lower transportation costs. Freight 
companies and shipping companies in North Carolina, as well as the 
local economy, might also benefit. Also, consumers are likely to gain 
from the increased selection of products and any price decreases, 
albeit small, that occur with increases in 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 12778

    This proposed rule would allow cold treatment of certain fruits to 
be conducted at the port of Wilmington, NC. 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 information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1980 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

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, title 7, chapter III, of the Code of Federal 
Regulations would be amended as follows:

PART 300--INCORPORATION BY REFERENCE

    1. The authority citation for part 300 would be revised to read as 
follows:

    Authority: 7 U.S.C. 150ee, 161, 162; 7 CFR 2.17, 2.51, and 
371.2(c). 2. In Sec. 300.1, paragraph (a) would be revised to read 
as follows:


Sec. 300.1  Materials incorporated by reference.

    (a) The Plant Protection and Quarantine Treatment Manual, which was 
revised and reprinted November 30, 1992, and includes all revisions 
through ________, has been approved for incorporation by reference in 7 
CFR chapter III by the Director of the Office of the Federal Register 
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

    3. The authority citation for part 319 would continue to read as 
follows:

    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450; 21 U.S.C. 
136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).

    4. In Sec. 319.56-2d, paragraph (a) would be revised to read as 
follows:


Sec. 319.56-2d  Administrative instructions for cold treatments of 
certain imported fruits.

    (a) Treatments authorized. Fresh fruits imported in accordance with 
this subpart and required under this subpart to receive cold treatment 
as a condition of entry must be cold treated in accordance with the 
Plant Protection and Quarantine (PPQ) Treatment Manual, which is 
incorporated by reference at Sec. 300.1 of this chapter. The cold 
treatments listed in the PPQ Treatment Manual are authorized for any 
fruit required to be cold treated under this subpart.
* * * * *


Sec. 319.56-2d  [Amended]

    5. In Sec. 319.56-2d, paragraph (b)(1), the second sentence would 
be amended by removing the phrase ``port of New York or such other 
northern ports as he may hereafter designate.'' and adding the phrase 
``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.'' in its 
place.
    6. In Sec. 319.56-2d, headings would be added at the beginning of 
paragraphs (b)(5)(i) through (b)(5)(iii), and a new paragraph 
(b)(5)(iv) would be added to read as follows:


Sec. 319.56-2d  Administrative instructions for cold treatments of 
certain imported fruits.

* * * * *
    (b) * * *
    (5) Cold treatment after arrival. (i) Delivery. * * *
    (ii) Precooling and refrigeration. * * *
    (iii) Customs. * * *
    (iv) Special requirements for the port of Wilmington, NC. Shipments 
of fruit arriving at the 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 packaged in fly-proof 
packaging that prevents the escape of adult, larval, or pupal fruit 
flies.
    (B) Bulk and containerized shipments of fruits and vegetables must 
be cold-treated within the port of Wilmington, NC, that is, 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 at the port of 
Wilmington, NC, must be made prior to the departure of a shipment from 
its port of origin.
* * * * *


Sec. 319.56-2u  [Removed and Reserved]

    7. Section 319.56-2u is removed and reserved.


Sec. 319.56-2v  [Amended]

    8. In Sec. 319.56-2v, paragraph (b), the third sentence would be 
amended by removing the phrase ``North Atlantic ports north of and 
including Baltimore, MD,'' and adding the phrase ``ports listed in 
Sec. 319.56-2d(b)(1) of this subpart,'' in its place.
    9. Section 319.56-2x would be amended as follows:
    a. In paragraph (a), the table would be amended for the Israel 
entry by adding a new commodity to read as set forth below.
    b. In paragraph (b), the first sentence would be amended by adding 
the phrase ``or the port of Wilmington, NC,'' immediately before the 
word ``if''.


Sec. 319.56-2x  Administrative instructions: conditions governing the 
entry of certain fruits and vegetables for which treatment is required.

    (a) * * *

------------------------------------------------------------------------
 Country/locality     Common name      Botanical name     Plant part(s) 
------------------------------------------------------------------------
                                                                        
                                  *****                                 
Israel                                                                  
                                                                        
                                  *****                                 
                   Pummelo..........  Citrus grandis..  Fruit           
                                                                        
                                  *****                                 
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    Done in Washington, DC, this 9th day of May 1994.
Lonnie J. King,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 94-11678 Filed 05-12-94; 8:45 am]
BILLING CODE 3410-34-P