[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