[Federal Register Volume 60, Number 133 (Wednesday, July 12, 1995)]
[Proposed Rules]
[Pages 35871-35873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17019]



 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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.
 
 ========================================================================
 

  Federal Register / Vol. 60, No. 133 / Wednesday, July 12, 1995 / 
Proposed Rules  


[[Page 35871]]


DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 94-065-1]


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 revise the regulations for the importation 
of fruits and vegetables to update provisions for inspections and other 
activities at the port of first arrival. We propose to clarify the 
procedures by which we give notice to an importer that cleaning, 
disinfection, disposal, or some other action is required for a shipment 
of fruits and vegetables. We also propose to clarify the responsibility 
of the owner of imported fruits or vegetables for carrying out actions 
ordered by an inspector in accordance with the regulations. This 
proposed action would provide clearer standards for persons who must 
comply with the regulations, and would aid our enforcement of the 
regulations.

DATES: Consideration will be given only to comments received on or 
before September 11, 1995.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 94-065-1, Regulatory Analysis and Development, PPD, APHIS, 
Suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1228. Please 
state that your comments refer to Docket No. 94-065-1. 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: Ms. Jane Levy or Mr. Frank E. Cooper, 
Senior Operations Officers, Port Operations, PPQ, APHIS, Suite 4A03, 
4700 River Road, Unit 139, Riverdale, MD 20737-1236; (301) 734-8645.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR 319.56 through 319.56-8 (referred to below 
as the regulations) prohibit or restrict the importation of fruits and 
vegetables into the United States from certain parts of the world to 
prevent the introduction and dissemination of injurious insects that 
are new to or not widely distributed within and throughout the United 
States.
    Section 319.56-6 of the regulations addresses requirements for the 
inspection and disinfection of imported fruits and vegetables at the 
port of first arrival. This section provides, among other things, that 
all imported fruits and vegetables, as a condition of entry, shall be 
subject to inspection, disinfection, or both, at the port of first 
arrival, as may be required by a U.S. Department of Agriculture (USDA) 
inspector. The purpose of the inspection or disinfection is to detect 
and eliminate plant pests. This section also provides that any shipment 
of fruits and vegetables may be refused entry if the shipment is 
infested with fruit flies or other dangerous plant pests and an 
inspector determines that it cannot be cleaned by disinfection or 
treatment, or if the shipment contains leaves, twigs, or other portions 
of plants.
    Section 319.56-6 also prohibits the movement of imported fruits and 
vegetables from the port of first arrival until the inspector gives 
notice to the collector of customs that the products have been 
inspected and found to be free from infestation and from plants or 
portions of plants used as packing or otherwise. This section also 
states that the importer is responsible for all charges for storage, 
cartage, and labor incident to inspection and disinfection, other than 
the services of the inspector.
    We are proposing to revise Sec. 319.56-6 to clarify the activities 
that occur at the port of first arrival for imported fruits and 
vegetables, and the roles and responsibilities of the USDA and the 
importer with regard to these activities. The current language of this 
section is unclear on some points, and we have experienced difficulties 
enforcing some of the requirements because the current language does 
not specify who is responsible for all of the activities and costs that 
may be required to clear a shipment for entry into the United States. 
We believe the changes we propose for this section would provide a 
clearer, more comprehensive standard for importers who must comply with 
our requirements, and would provide us with a better basis for 
enforcing the requirements of the regulations.
    Current Sec. 319.56-6(a) states that imported fruits or vegetables 
``shall be subject, as a condition of entry, to such inspection or 
disinfection, or both, at the port of first arrival, as shall be 
required by the inspector * * *.'' This language does nothing to inform 
the importer as to when or why an inspector might order disinfection, 
or who is responsible for conducting it. To provide this information, 
we propose to add the statement that ``If the inspector finds a plant 
pest or evidence of a plant pest on or in any fruit or vegetable or its 
container, or finds that the fruit or vegetable may have been 
associated with other articles infested with plant pests, the owner or 
agent of the owner of the fruit or vegetable shall clean or treat the 
fruit or vegetable as required by an inspector * * *.''
    We also propose to amend Sec. 319.56-6(a) to make it clear that 
imported fruits and vegetables may be subject to reinspection, 
cleaning, and treatment at the option of an inspector at any time and 
place before all applicable requirements of this subpart have been 
accomplished. The current language only allows inspection and 
disinfection at the port of first arrival, and reinspection at 
destination.
    Also, the current regulations say nothing about where the inspector 
will have the opportunity to inspect the imported fruits and 
vegetables, or how the importer will cooperate in providing the 
opportunity for inspection. Therefore, we propose to add a new 
paragraph that requires the owner or agent of the owner to assemble 
imported fruits and vegetables for inspection at the port of first 
arrival, or at any other place prescribed by an inspector, at a place 
and time and in a manner designated by an inspector.
    The language in current Sec. 319.56-6(c), which describes when 
imported fruits and vegetables may be removed from 

[[Page 35872]]
the port of first arrival, is confusing and misleading. It reads ``No 
crate, box, hamper, or other container of fruits or vegetables, or 
fruits and vegetables in bulk, shall be removed from the port of first 
arrival unless and until a written notice is given to the collector of 
customs by the inspector of the United States Department of Agriculture 
that the products have been inspected and found to be free from 
infestation and from plants or portions of plants used as packing or 
otherwise.''
    We propose to revise this language to make it consistent with the 
actual current operating procedures at ports. The proposed revision 
would state that no person could move any imported fruit or vegetable 
from the port until an inspector notifies the person that the fruit or 
vegetable either has been released, or requires reinspection, cleaning, 
or treatment at that port or at a place other than the port.
    This revision would make it clear that the release for movement 
requirements apply to all imported fruits and vegetables, regardless of 
whether or how they are packaged. It would also clarify that our 
inspector, rather than the collector of customs, gives the notice that 
allows articles to move, to the person moving the articles. While we 
coordinate our release of materials with customs officials at ports, we 
do not need to impose a regulatory requirement to do so; the point of 
the notice requirement in this section is to inform the owners of 
articles when they can move them as far as USDA is concerned. This 
change would also remove the requirement that the notice be written. 
Inspectors at ports currently give notice in person, by telephone, in 
writing, or by electronic means such as e-mail or entry into an 
electronic database. We do not find it necessary to require the actual 
notice to be in written form.
    This revision would also clarify the standard we apply in deciding 
to release a shipment for movement from the port of first arrival. The 
current language is misleading, because not all shipments we release 
have been ``inspected and found to be free from infestation.'' Some 
shipments are released after they are found to be infested and were 
successfully disinfected, and some shipments are released to be moved 
to some other location for a required treatment. The current language 
stating that the products must be free ``from plants or portions of 
plants'' is also confusing unless the reader refers back to the 
definition of ``plants or portions of plants'' in Sec. 319.56-1. It is 
easier to understand that the inspector will release articles after 
determining that they comply with the regulatory requirements, as we 
propose in the new language.
    The current language allows inspectors to order shipments to be 
cleaned, disinfected, treated, or refused entry and disposed of, but it 
does not specify who the inspector must notify when ordering such 
actions. The current regulations also do not make any person clearly 
responsible for completing the actions ordered by an inspector. We are 
proposing to add a new paragraph requiring that an inspector order such 
actions by filing an emergency action notification (PPQ Form 523) with 
the owner of the fruit or vegetable or an agent of the owner. We also 
propose to add language requiring that the person/company named in the 
PPQ Form 523 must, within the time specified in the PPQ Form 523, 
destroy the fruits, ship them to a point outside the United States, 
move them to an authorized site, and/or apply treatments or other 
safeguards to them as prescribed by an inspector to prevent the 
introduction of plant pests into the United States. This approach is 
consistent with current procedures at ports, and would clarify the 
responsibilities of involved parties and aid enforcement of the 
regulations.
    Finally, current Sec. 319.56-6(d) addresses the responsibility of 
the importer for charges ``incident to inspection and disinfection,'' 
but provides little detail on what activities might result in charges. 
We propose to add a new paragraph to state that the Animal and Plant 
Health Inspection Service (APHIS) will be responsible only for the 
costs of providing the services of an inspector during regularly 
assigned hours of duty and at the usual places of duty. The owner of 
imported fruits or vegetables is responsible for all additional costs 
of inspection, treatment, storage, movement, or destruction ordered by 
an inspector under the regulations, including any labor, chemicals, 
packing materials, or other supplies required. APHIS will not be 
responsible for any costs or charges, other than those identified in 
this section.

Correction of Citrus Canker Status of Mexico

    In a final rule published in the Federal Register and effective on 
July 23, 1991 (Docket No. 91-022, 56 FR 33703-33704), we removed our 
``Citrus Canker--Mexico'' regulations (7 CFR 319.27 through 319.27-11). 
This action resulted from our determination that the regulations were 
no longer needed because citrus canker no longer existed in Mexico. 
Removing the ``Citrus Canker--Mexico'' regulations removed restrictions 
on the importation from Mexico of citrus fruit and peel. However, we 
inadvertently neglected to remove a provision in 7 CFR 319.37-6(e) that 
restricted importation of citrus seed from Mexico due to citrus canker. 
To correct this oversight, we now propose to remove Mexico from the 
list of countries in 7 CFR 319.37-6(e).

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.
    If adopted, this proposal would clarify procedures for the 
inspection and release of imported fruits and vegetables at the port of 
first arrival in the United States. The proposed revision of the 
regulations would update the regulatory language to conform to 
procedures currently in use at ports. These changes would provide a 
clearer standard for importers of fruits and vegetables who must comply 
with the regulations, and would enhance enforcement of the regulations. 
The proposed changes would not add any significant new costs for 
importers of fruits and vegetables or other persons. Importers are 
already responsible for all costs of treatment, movement, storage, or 
destruction ordered by an inspector at a port.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12778

    This proposed rule would clarify the requirements at the port of 
first arrival for fruits and vegetables imported into the United 
States. If this proposed rule is adopted, State and local laws and 
regulations regarding the importation of fruits and vegetables under 
this rule would be preempted while the fruits and vegetables are in 
foreign commerce. Fresh fruits and vegetables 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 

[[Page 35873]]
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 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 2.17, 2.51, and 371.2(c).


Sec. 319.37-6  [Amended]
    2. In Sec. 319.37-6, paragraph (e) would be amended by removing the 
word ``Mexico,''.
    3. Section 319.56-6 would be revised to read as follows:


Sec. 319.56-6  Inspection and other requirements at the port of first 
arrival.

    (a) Inspection and treatment. All imported fruits or vegetables 
shall be inspected, and shall be subject to such disinfection at the 
port of first arrival as may be required by an inspector, and shall be 
subject to reinspection at other locations at the option of an 
inspector. If an inspector finds a plant pest or evidence of a plant 
pest on or in any fruit or vegetable or its container, or finds that 
the fruit or vegetable may have been associated with other articles 
infested with plant pests, the owner or agent of the owner of the fruit 
or vegetable shall clean or treat the fruit or vegetable and its 
container as required by an inspector, and the fruit or vegetable shall 
also be subject to reinspection, cleaning, and treatment at the option 
of an inspector at any time and place before all applicable 
requirements of this subpart have been accomplished.
    (b) Assembly for inspection. The owner or agent of the owner shall 
assemble imported fruits and vegetables for inspection at the port of 
first arrival, or at any other place prescribed by an inspector, at a 
place and time and in a manner designated by an inspector.
    (c) Refusal of entry. If an inspector finds that an imported fruit 
or vegetable is prohibited or is so infested with a plant pest that, in 
the judgment of the inspector, it cannot be cleaned or treated, or 
contains soil or other prohibited contaminants, the entire lot may be 
refused entry into the United States.
    (d) Release for movement. No person shall move from the port of 
first arrival any imported fruit or vegetable unless and until an 
inspector notifies the person (in person, in writing, by telephone, or 
through electronic means) that the fruit or vegetable:
    (1) Has been released; or
    (2) Requires reinspection, cleaning, or treatment of the fruit or 
vegetable at that port or at a place other than the port of first 
arrival, or is prohibited and must be exported from the United States.
    (e) Notice to owner of actions ordered by inspector. If an 
inspector orders any disinfection, cleaning, treatment, reexportation, 
or other action with regard to imported fruits or vegetables, the 
inspector shall file an emergency action notification (PPQ Form 523) 
with the owner of the fruits or vegetables or an agent of the owner. 
The owner must, within the time specified in the PPQ Form 523, destroy 
the fruits and vegetables, ship them to a point outside the United 
States, move them to an authorized site, and/or apply treatments or 
other safeguards to the fruits and vegetables as prescribed by an 
inspector to prevent the introduction of plant pests into the United 
States.
    (f) Costs and charges. The Animal and Plant Health Inspection 
Service (APHIS), U.S. Department of Agriculture will be responsible 
only for the costs of providing the services of an inspector during 
regularly assigned hours of duty and at the usual places of duty.1 
The owner of imported fruits or vegetables is responsible for all 
additional costs of inspection, treatment, movement, storage, or 
destruction ordered by an inspector under this subpart, including any 
labor, chemicals, packing materials, or other supplies required. APHIS 
will not be responsible for any costs or charges, other than those 
identified in this section.

    \1\ Provisions relating to costs for other services of an 
inspector are contained in 7 CFR part 354.

    Done in Washington, DC, this 30th day of June 1995.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-17019 Filed 7-11-95; 8:45 am]
BILLING CODE 3410-34-P