[Federal Register Volume 63, Number 49 (Friday, March 13, 1998)]
[Rules and Regulations]
[Pages 12383-12396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6536]



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  Federal Register / Vol. 63, No. 49 / Friday, March 13, 1998 / Rules 
and Regulations  

[[Page 12383]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 96-046-5]


Importation of Fruits and Vegetables; Papayas From Brazil and 
Costa Rica

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation of 
fruits and vegetables into the United States to allow, under certain 
conditions, the importation of papayas from Brazil. The conditions for 
the importation of papayas from Brazil include requirements for 
growing, treating, packing, and shipping the papayas; for field 
sanitation; and for fruit fly trapping in papaya production areas. We 
are also amending the regulations to apply these same conditions to the 
importation of papayas from Costa Rica. These actions will allow for 
the importation of papayas from Brazil and Costa Rica while continuing 
to provide protection against the introduction of injurious plant pests 
into the United States. This rule provides importers and consumers in 
the United States with an additional source of papayas.

EFFECTIVE DATE: March 13, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Campbell, Import 
Specialist, Phytosanitary Issues Management Team (PIMT), PPQ, APHIS, 
4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

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 fruit flies and other 
injurious plant pests that are new to or not widely distributed within 
and throughout the United States.
    On March 25, 1997, we published in the Federal Register (62 FR 
14037-14044, Docket No. 96-046-1) a proposal to amend the regulations 
by allowing certain previously prohibited fruits and vegetables to be 
imported into the United States from certain parts of the world under 
specified conditions.
    One of the fruits that we proposed to allow to be imported into the 
United States was the Solo type papaya (Carica papaya) from Brazil. 
Because fully ripe papayas can be hosts of several serious plant pests, 
including the Mediterranean fruit fly (Ceritatis capitata) (Medfly) and 
the South American fruit fly (Anastrepha fraterculus), we proposed to 
allow the importation of Solo type papayas from Brazil only under 
certain conditions. The proposed conditions were based on research 
conducted in Brazil, Costa Rica, and Hawaii and were modeled after the 
provisions in Sec. 319.56-2w of the regulations for papayas from Costa 
Rica. The conditions proposed were as follows:
    1. The papayas were grown and packed for shipment to the United 
States in the State of Espirito Santo.
    2. Beginning at least 30 days before harvest began and continuing 
through the completion of harvest, all trees in the area where the 
papayas were grown were kept free of papayas that were one-half or more 
ripe (more than one-quarter of shell surface yellow), and all culled 
and fallen fruit were removed from the field at least twice a week.
    3. When packed, the papayas were less than one-half ripe (shell 
surface no more than one-quarter yellow, surrounded by light green) and 
appeared to be free of all injurious plant pests.
    4. The papayas were packaged so as to prevent access by fruit flies 
or other injurious plant pests, and the package does not contain any 
other fruit, including papayas not qualified for importation into the 
United States.
    5. All activities described in provisions 1 through 4 above were 
carried out under the supervision and direction of plant health 
officials of the national Ministry of Agriculture.
    6. Beginning at least 1 year before harvest began and continuing 
through the completion of harvest, fruit fly traps were maintained in 
the field where the papayas were grown. The traps were placed at the 
rate of 1 trap per hectare and were checked for fruit flies at least 
once a week by plant health officials of the national Ministry of 
Agriculture. Fifty percent of the traps were of the McPhail type, and 
50 percent of the traps were of the Jackson type. The national Ministry 
of Agriculture kept records of the fruit fly finds for each trap, 
updating the records each time the traps were checked, and made the 
records available to the Animal and Plant Health Inspection Service 
(APHIS) upon request. The records were maintained for at least 1 year.
    7. All shipments of papayas must be accompanied by a phytosanitary 
certificate issued by the national Ministry of Agriculture stating that 
the papayas were grown, packed, and shipped in accordance with the 
provisions of this section.
    We solicited comments concerning our proposal for 60 days ending 
May 27, 1997. We received 11 comments by that date. They were from 
representatives of industry and State governments. Six of the 
commenters supported the proposed rule in its entirety. The remaining 5 
commenters had reservations about specific provisions of the proposed 
rule. Of those 5 commenters, 3 commenters had concerns about the 
proposed importation of papayas from Brazil. Upon further review and 
consideration of this issue, we decided to finalize all portions of our 
March 27, 1997, proposed rule except the portion concerning papayas 
from Brazil. (See Docket No. 96-046-3 at 62 FR 50231-50237, September 
25, 1997.)
    We published another document in the Federal Register on September 
25, 1997, (Docket No. 96-046-2, 62 FR 50260-50262) that reopened and 
extended the comment period on that portion of the proposed rule 
concerning the importation of papayas from Brazil, and also proposed 
additional conditions for the importation of papayas from Brazil and 
Costa Rica. These additional conditions included hot water treatment 
and a requirement that certain actions be taken if Medfly captures 
reached certain levels in papaya production areas. These additional 
conditions were proposed to help further prevent the

[[Page 12384]]

introduction into the United States of plant pests, including fruit 
flies, that may be associated with the papayas.
    Comments on the proposed conditions for importing papayas from 
Brazil and Costa Rica, including the additional conditions, were 
required to be received on or before October 27, 1997. We received 32 
comments by that date. They were from representatives of industry, 
universities, and State governments, and from a member of Congress. 
Eight commenters supported the provisions of the proposal, including 
the additional conditions. The remaining 24 commenters expressed 
various concerns about the proposal. Their concerns are discussed 
below.
    Comment: APHIS acknowledges that Medfly and South American fruit 
fly pose a significant risk to American agriculture. APHIS also 
acknowledges that these pests meet the international criteria for 
designation as quarantine pests. Further, APHIS recognizes that papayas 
from Brazil are coming from an area infested with Medfly and South 
American fruit fly. Therefore, because of the pest risk posed by the 
importation into the United States of papayas from Brazil, the proposal 
should be withdrawn.
    Response: The North American Plant Protection Organization (NAPPO) 
defines ``quarantine pest'' as a ``pest of potential economic 
importance to the area endangered thereby and not present in that area, 
or present there but not widely distributed and being officially 
controlled.'' 1 Based on this definition, we agree that 
Medfly and South American fruit fly are quarantine pests that, if 
established in the United States, could cause economic losses to U.S. 
producers of fruit fly host crops. Therefore, in order to prevent the 
introduction and establishment in the United States of Medfly and South 
American fruit fly, we allow foreign fruit fly host crops to be 
imported into the United States only under the following conditions: 
(1) If those crops originate from a fruit fly-free area; or (2) if 
those crops are treated with an approved treatment that has been 
determined to prevent the adult emergence of fruit flies; or (3) if 
those crops are subject to other appropriate and effective mitigation 
measures, such as a combination of phytosanitary measures, taken to 
prevent the introduction of fruit flies into the United States.
---------------------------------------------------------------------------

    \1\ NAPPO Compendium of Phytosanitary Terms, February 1996.
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    The State of Espirito Santo, Brazil, where papayas for importation 
into the United States will be grown, does have established populations 
of both Medfly and South American fruit fly. However, in order to be 
eligible for importation into the United States, papayas from Espirito 
Santo, Brazil, must be grown, treated, packed, and shipped in 
accordance with certain phytosanitary requirements imposed to ensure 
that the papayas do not introduce these pests into the United States. 
The most important of these requirements is that the papayas for 
importation must be less than one-half ripe. Research conducted in 
Brazil, as well as other research, including surveys and studies 
conducted prior to the papaya import program in Costa Rica, and our 
experience conducting the Costa Rican papaya import program, 
demonstrates that papayas in any stage of ripeness are not a preferred 
host for Medfly or South American fruit fly. This research also shows 
that papayas that are less than one-half ripe are not a host for Medfly 
or South American fruit fly. For example, in a study conducted in 
Brazil, more than 100,000 papayas of all ripeness degrees, green to 
fully ripe (entirely yellow), were collected in commercial groves in 
Espirito Santo. Under these natural conditions, none of the papayas, 
not even fully ripe papayas, contained fruit fly larvae. Under forced 
conditions (e.g., cage tests, where Medfly and South American fruit fly 
are confined in cages with ripening papayas), Medfly and South American 
fruit fly only attacked fully ripe papayas. Therefore, we are confident 
that papayas from Brazil that are less than one-half ripe present a 
negligible risk of introducing Medfly or South American fruit fly into 
the United States.
    As an additional precaution, however, we proposed other mitigation 
measures, in the form of phytosanitary requirements, for papayas from 
Brazil before they may be imported into the United States. These 
mitigation measures include field sanitation measures to ensure that 
culls or fallen fruit, which may attract Medfly or South American fruit 
fly, are kept out of papaya production areas; packing requirements to 
ensure that once the papayas are picked and packed, they will not be 
susceptible to fruit fly infestation; hot water treatment to further 
reduce the pest risk associated with the papayas; and trapping 
requirements to monitor the fruit fly population in papaya production 
areas and to take action if that population exceeds a certain level. 
These additional phytosanitary requirements form a systems approach to 
pest mitigation; that is, these conditions constitute a framework of 
overlapping, redundant safeguards that together minimize the pest risk 
associated with papayas from Brazil.
    In light of all of these factors, we believe that there is an 
insignificant risk of introducing Medfly or South American fruit fly in 
shipments of papayas imported into the United States from Brazil. 
Therefore, we are making no changes to the proposal in response to this 
comment.
    Comment: If the risk of pest introduction associated with Brazilian 
papayas is so great as to prohibit their movement into Hawaii, then the 
fruit should also be barred from entering other States that have crops 
and climates adequate to support the establishment of Medfly and South 
American fruit fly populations. Examples of such States are Florida, 
California, Texas, and Arizona. We believe that the proposal 
discriminates against the continental growers of papayas in favor of 
Hawaiian growers.
    Response: Papayas from Brazil will not be allowed to move into 
Hawaii because of the papaya fruit fly (Toxotrypana curvicauda). Papaya 
fruit fly does not occur in Hawaii, but it is reported to occur in 
other U.S. papaya production areas. As such, papaya fruit fly is not a 
quarantine pest for most places in the United States, but it is for 
Hawaii. Papaya fruit fly occurs in Brazil, but has only been reported 
in areas outside of commercial papaya production areas. However, Brazil 
does not have any official controls in place to prevent the spread of 
papaya fruit fly into commercial papaya production areas. As such, we 
are prohibiting the movement of papayas from Brazil and Costa Rica into 
Hawaii as a precautionary measure to prevent the introduction of papaya 
fruit fly into Hawaii. This final rule includes a requirement at 
Sec. 319.56-2w(f) that all cartons in which papayas are packed must be 
stamped ``Not for importation into or distribution in HI.'' However, 
for the reason discussed above, we are not restricting the movement of 
papayas from Brazil into papaya-producing areas on the mainland United 
States.
    Comment: Why, if Hawaii is required to spend several hundreds of 
thousands of dollars on treatment chambers in order to move Hawaiian 
papayas interstate to the mainland United States, are locations like 
Brazil and Costa Rica free to send papayas to the mainland United 
States without treatments?
    Response: Because of the occurrence of Oriental fruit fly, a pest 
that will attack papayas in all ripeness stages, papayas from Hawaii 
must undergo a stand-alone treatment that will prevent

[[Page 12385]]

the adult emergence of fruit flies. The treatment may be conducted 
either prior to interstate movement to the mainland United States or in 
a non-fruit fly-supporting area of the mainland United States. At 
present, the approved treatments for fresh papayas from Hawaii are 
vapor-heat treatment, in accordance with Sec. 318.13-4b; irradiation 
treatment, in accordance with Sec. 318.13-4f; and high temperature 
forced air treatment, in accordance with the PPQ Treatment Manual, 
incorporated by reference at Sec. 300.1. In Brazil and Costa Rica, 
where Oriental fruit fly does not occur, a systems approach to pest 
management that does not include a stand-alone treatment to prevent the 
adult emergence of fruit flies has been determined to be adequate to 
mitigate the risk of introducing into the United States injurious plant 
pests that may be associated with the papayas.
    Comment: Hawaii experiences a higher level of fruit fly infestation 
in its papayas because of incidences of blossom end defect, a defect 
found in some Solo type papayas. The increased risk of fruit fly 
infestation associated with blossom end defect in papayas from Brazil 
has not been addressed by the phytosanitary requirements in the 
proposal. It would be impossible to detect larval infestations in 
papayas with blossom end defect at the U.S. port of arrival because 
APHIS inspections at the port of arrival are only a very small sampling 
of total imports. Measures, including additional treatment of papayas, 
should be taken to mitigate this risk before papayas from Brazil are 
allowed into the United States.
    Response: Certain Hawaiian papayas exhibit blossom end defect, 
which occurs from abnormal placental growth near the blossom end of the 
fruit. Papayas with blossom end defect have a scar on the blossom end 
of the fruit and, as a result of the defect, may have a small opening 
in the skin and flesh of the fruit that leads into the seed cavity of 
the papaya. This defect is associated with a high risk of infestation 
of Oriental fruit fly, but no written reports associate blossom end 
defect with infestation of Medfly or South American fruit fly. While an 
exceedingly high density of Oriental fruit fly exists in Hawaii, 
Oriental fruit fly does not occur in Brazil or Costa Rica. As such, we 
do not believe that the presence of blossom end defect in papayas from 
Brazil or Costa Rica increases the pest risk associated with the 
importation of those papayas. Therefore, we are making no changes to 
the proposal in response to this comment.
    Comment: If Medflies do not infest less than one-half ripe papayas, 
as the proposal indicates, how did the Hawaiian papaya program allow 
fruit flies to enter California inside one-quarter ripe fruit?
    Response: In February 1987, the California Department of Food and 
Agriculture (CDFA) found live Oriental fruit fly larvae in 13 quarter-
ripe papayas that had moved interstate from Hawaii to the mainland 
United States with a hot water treatment consisting of a two-stage hot 
water dip. All of the infested papayas exhibited blossom end defect. At 
that time, Hawaii believed that further introductions of Oriental fruit 
fly onto the mainland United States could be prevented by safeguards 
instituted in packinghouses in Hawaii. All papayas exhibiting 
unevenness in ripening (through surface color of the papaya), a symptom 
of blossom end defect, would be removed from shipments of papayas 
moving to the mainland at the packinghouse. In 1989, however, CDFA 
again discovered live Oriental fruit fly larvae in Hawaiian papayas 
that had been treated with a two-stage hot water dip, but as before, 
all of the infested papayas exhibited blossom end defect. Therefore, we 
subsequently discontinued the interstate movement of papayas from 
Hawaii that had been treated with the two-stage hot water treatment.
    As noted above, Oriental fruit fly does not occur in Brazil or 
Costa Rica. Therefore, we remain confident that less than one-half ripe 
papayas from Brazil and Costa Rica present an insignificant risk of 
introducing fruit flies into the United States.
    Comment: APHIS allows papayas from Belize to be imported without 
treatment only if the papayas originate from a Medfly-free area in 
Belize. Papayas may be imported from other parts of Belize that are not 
Medfly-free areas only with treatment for Medfly. The conditions for 
the importation of papayas from Brazil need to match the conditions for 
the importation of papayas from Belize. Therefore, as it has for 
papayas from Belize, APHIS needs to require a stand-alone treatment 
that will prevent the adult emergence of fruit flies for all papayas 
originating from a Medfly-infested area.
    Response: Under Sec. 319.56-2t, papayas from Belize are eligible 
for importation into the United States without treatment if the papayas 
originate from the Medfly-free districts of Cayo, Corozal, or Orange 
Walk, or from the Medfly-free portion of the district of Stann Creek, 
in Belize. Under Sec. 319.56-2x, papayas from other districts of Belize 
are eligible for importation into the United States if the papayas are 
treated for Medfly. However, no papayas from Belize may enter Hawaii 
because of the risk of introducing papaya fruit fly (Toxotrypana 
curvicauda) into Hawaii.
    The regulations for the importation of papayas from Belize do not 
provide any requirements for the ripeness of papayas eligible for 
importation into the United States; papayas imported from Belize may be 
of any ripeness, including fully ripe. In addition, the regulations for 
the importation of papayas from districts in Belize that are not 
Medfly-free do not provide conditions for the growing, packing, or 
shipping of papayas. Therefore, no measures are required in those areas 
in Belize where Medfly occurs to prevent Medfly infestation of papayas. 
As such, we require that papayas originating from an area of Belize 
that is not Medfly-free undergo a treatment that prevents the adult 
emergence of Medfly.
    Unlike the requirements for papayas from Belize, the requirements 
for papayas from Brazil and Costa Rica concentrate on preventing fruit 
fly infestation of the papayas. As discussed earlier, we proposed a 
systems approach for the importation of papayas from Brazil and Costa 
Rica that includes requirements for the ripeness of papayas eligible 
for importation; requirements for the growing, packing, and shipping of 
the papayas; and requirements for trapping in papaya production areas. 
Taken together, these phytosanitary measures are as effective in 
preventing the introduction of Medfly into the United States as a 
treatment designed to prevent the adult emergence of Medfly. Therefore, 
we are making no changes to the proposal in response to this comment.
    Comment: For the proposed systems approach, APHIS has not supplied 
objectively measured, statistically valid quantification of either the 
risks themselves or the efficacy of each individual mitigation measure. 
Without such measurements, such a program has no validity, no standard 
for evaluation, and, in fact, no substance.
    Response: Research from Brazil and Costa Rica substantially 
demonstrates that there is very little risk involved with importing 
papayas that are one-half or less ripe into the United States. Yet to 
further reduce the pest risk associated with papayas from Brazil, we 
are requiring certain phytosanitary measures be taken in the fields and 
packinghouses of Brazil and Costa Rica, as discussed earlier. However, 
each individual measure is not intended to act as a stand-alone 
treatment for Medfly, South American fruit fly, or any other pest. 
These are overlapping,

[[Page 12386]]

redundant measures that collectively form a systems approach to the 
importation of papayas from Brazil. Therefore, we see no need to assess 
the efficacy of each part of the systems approach, but to determine the 
effectiveness of the components as a whole. Assessment of the 
phytosanitary measures, and of the success of the Costa Rican papaya 
import program, which is based on similar measures, demonstrate that 
the systems approach we will apply to the importation of papayas from 
Brazil is effective in minimizing the pest risk associated with the 
importation of papayas from Brazil to an insignificant level.
    Comment: Taken together, do the conditions of the systems approach 
to manage the pest risk associated with Brazilian papayas ensure a 
probit 9 level of quarantine security?
    Response: Individually, the conditions included in the systems 
approach are not adequate to reduce to an acceptable level the risk of 
the introduction into the United States of injurious plant pests; in 
other words, no one condition is intended as a stand-alone treatment 
for the pests associated with papayas from Brazil. Taken together, 
however, the conditions for papayas from Brazil are sufficient to 
mitigate the risk of the introduction of injurious plant pests 
associated with papayas from Brazil.
    Probit 9 level of security refers to a level of effectiveness for a 
treatment. Probit 9 security means that no more than 32 out of 
1,000,000 treated individuals (such as fruit flies) will pass through 
treatment and still emerge as adults. Determining the efficacy of the 
Brazilian papaya systems approach is very different from determining 
the efficacy of a probit 9 treatment. As discussed earlier, research 
has shown that less than one-half ripe papayas are not a host for 
Medfly or South American fruit fly, so we would not expect to find 
Medfly or South American fruit fly in papayas imported from either 
Brazil or Costa Rica. The addition of other multiple safeguards for 
papayas from Brazil and Costa Rica will ensure quarantine security.
    As mentioned earlier, under a systems approach similar to the one 
proposed for papayas from Brazil, papayas from Costa Rica have been 
imported into the United States since 1992, and the Costa Rican system 
has proven successful against the introduction of exotic plant pests 
into the United States in papayas from Costa Rica.
    Comment: No reliable, peer-reviewed research exists that adequately 
demonstrates that Solo type papayas that are less than one-half ripe 
pose little risk of harboring Medfly or South American fruit fly. 
Therefore, it must be concluded that Solo type papayas that are less 
than one-half ripe are hosts for Medfly and South American fruit fly. 
As such, APHIS should not allow Brazilian papayas to enter the United 
States unless a stand-alone quarantine treatment, such as vapor heat or 
irradiation treatment, is required for the papayas.
    Response: The research conducted by officials in Brazil, Costa 
Rica, and Hawaii was critically reviewed by U.S. Department of 
Agriculture (USDA) personnel and found to be satisfactory. This 
research demonstrates that less than one-half ripe papayas (shell 
surface no more than one-quarter yellow, surrounded by light green) are 
not a host for Medfly or South American fruit fly. Further, field and 
cage tests conducted in Costa Rica and Brazil demonstrate that fully-
ripe papayas are not a preferred host of Medfly or South American fruit 
fly.
    In field tests in Costa Rica, papayas were purposely left on trees 
so that all stages of ripeness were represented at all times, and 
fields growing papayas for survey were not treated with pesticides. 
Approximately 100,000 papayas were examined over the course of 3 years. 
No Anastrepha spp. of fruit flies were found in any of the papayas, 
even in almost fully ripe fruits, and no Medflies were found in papayas 
that were one-half ripe or less. In those 100,000 papayas, only 6 
Medfly larvae were found in fruit that was three-quarters ripe or more. 
Those 6 larvae, plus trap catches in the areas where research was 
conducted in Costa Rica, indicate that Medflies were present in the 
area, but that Medflies do not prefer papayas, especially papayas that 
are less than one-half ripe.
    Further, in forced tests in Costa Rica, no Medfly or Anastrepha 
spp. larvae were found in papayas that were green to quarter-ripe, and 
only one larva was found in a half-ripe papaya.
    In addition, as discussed earlier, in field tests in Brazil, over 
100,000 papayas of all ripeness stages (green to fully ripe) were 
collected in papaya groves. No fruit flies were found in any of the 
papayas. Therefore, in the Brazilian survey, even when fruit was 
allowed to fully ripen in the field, it did not contain any fruit fly 
eggs or larvae. Further, in forced tests in Brazil, oviposition (i.e., 
the laying of eggs) was only evident in fully ripe or overripe papayas. 
The results of these tests and the tests conducted in Costa Rica 
confirm that papayas that are less than one-half ripe are not hosts of 
Medfly or South American fruit fly. Therefore, we are making no changes 
to the proposed rule in response to this comment.
    Comment: The research conducted in Brazil, on which you based your 
proposal to allow papayas from Brazil to be imported into the United 
States, should not be so old. The experiments need to be conducted 
again in order to affirm that Espirito Santo's papayas are free of 
fruit fly infestation. Experiments and studies also need to be carried 
out for a longer period of time. In addition, the research should 
include information on more than three farms of unknown size and 
location.
    Response: The research that Brazil provided for our review was 
determined to be sufficient by USDA quarantine specialists employed by 
the Agricultural Research Service of USDA. The date of the research 
does not appear to be relevant, but in any case, the research conducted 
in Brazil was not the only research we used to support our proposal to 
allow papayas from Brazil to be imported into the United States. As 
discussed earlier, we also based our decision to propose the 
importation of papayas from Brazil on research conducted in Costa Rica 
and Hawaii. Therefore, we see no need for additional research in order 
to finalize this proposal.
    Comment: In APHIS' June 1995 technical report (``Determination of 
`Solo' Papaya Status as Fruit Fly (Tephritidae) Host in Espirito Santo 
State, Brazil, With Quarantine Objectives''), the following quotation 
was attributed to Jiron and Hedstrom (1988): ``In Costa Rica, except 
the papaya fruit fly, all tephritid fruit flies do not infest in 
natural conditions the solo-type papayas before an advanced degree of 
ripeness is reached.'' Papaya was not a part of this study.
    Additionally, in the same technical report, APHIS states that 50 
papayas of each ripeness stage were harvested in the entire orchard in 
one of the tests conducted in Brazil. If papayas were collected from 
the entire orchard, does that mean that some of those papayas were 
collected from insecticide-treated areas?
    Further, the authors of the technical report conclude that trap 
catches indicate that Medfly and South American fruit fly do not prefer 
papayas; I disagree with this conclusion. Trap catches will not 
indicate fruit fly preference; a choice test will do this.
    Response: Regarding the quote attributed to Jiron and Hedstrom, we 
agree that the citation is incorrect, but the content of the statement 
(i.e., that fruit flies do not infest in natural conditions Solo type 
papayas before an

[[Page 12387]]

advanced degree of ripeness is reached) is accurate.
    In response to the question concerning the collection of papayas, 
no insecticides were applied to areas where papayas were harvested for 
tests conducted in Brazil.
    Regarding one of the conclusions of the technical report, the 
authors used the word ``indicate'' as a synonym for ``suggest,'' and 
field and cage tests, including a choice test, proved their suggestion 
that Medfly and South American fruit fly do not prefer papayas. We 
regret any misunderstanding, however, and believe it would have been 
more appropriate to say that trap catches and field and cage tests 
indicate that papaya is not a preferred host of Medfly or South 
American fruit fly.
    Comment: If no insecticide was applied in areas where papayas were 
harvested for this test, which insecticides were applied in other 
areas? Were these areas surrounding the experimental areas? This may 
have interfered with fruit fly population density.
    Response: During field experiments, no insecticides were applied in 
experimental fields in Brazil, and, based on trapping data, we know 
that fruit flies were present in those fields. Therefore, during field 
tests, fruit flies could have infested the papayas, but, as discussed 
earlier, no fruit fly larvae were found in papayas at any stage of 
ripeness.
    Brazil's research does not provide information on the types of 
insecticides, if any, applied in other areas. However, we do not 
believe that the application of pesticides in other areas, including 
areas surrounding experimental fields, would have significantly 
affected fruit fly populations in experimental fields.
    Based on the time of year, ambient temperature, and other factors, 
the density of the fruit fly population in a given area fluctuates 
naturally. For that and the other reasons discussed, we designed, as 
part of our systems approach for the importation of papayas from Brazil 
and Costa Rica, trapping thresholds for Medfly and South American fruit 
fly to either trigger mitigation measures or halt papaya imports into 
the United States from specific papaya production areas in Brazil. 
These trapping thresholds, combined with the other components of our 
systems approach for the importation into the United States of papayas 
from Brazil, will provide protection against the introduction into the 
United States of Medfly and South American fruit fly.
    Comment: In the Brazilian experiments, if stage 4 and 5 papayas 
(papayas more than one-half ripe) were examined for larvae in the same 
day of harvest, why were they not examined for fruit fly eggs the same 
day of harvest as well? Why were stage 1, 2, and 3 papayas (1 and 2 
being less than one-half ripe, 3 being half-ripe) only left at room 
temperature for 2-4 days? Medfly eggs hatch in 4 days, but may require 
longer. Also, why was the number of pupae emerging from the papaya not 
looked into? The number of pupae should have been assessed.
    Response: The life stages of a fruit fly occur in order as follows: 
egg, larva, pupa, adult. The experiments conducted in Brazil focused on 
examinations for fruit fly larvae for two reasons. First, fruit fly 
eggs are more difficult to detect during inspection than fruit fly 
larvae. Second, if fruit fly eggs are detected during inspection, it is 
impossible to determine, without waiting for the eggs to hatch, whether 
those eggs will hatch viable larvae that will develop into adults. For 
those reasons, no papayas, including stage 4 and 5 papayas, were 
examined for fruit fly eggs.
    In examining for larval development in papayas, the Brazilian 
experiments concentrated on finding the earliest life stage that is 
readily detectable and that marks the progress of a viable, fertile, 
adult fruit fly. Stage 1, 2, and 3 papayas were left at room 
temperature for 2-4 days because that amount of time allows for larvae 
in the fruit to develop to a sufficient size for easy detection.
    Because of the lack of larvae finds in Brazilian papayas, it was 
not necessary to assess the number of pupae emerging from papayas. If 
there are no larvae, then there will be no pupae.
    Comment: In Brazil's 1993 field cage test, how many cages were used 
per test? In the 1993 tests, the number of fruit flies per cage is 
quite low considering the dimensions of the cage. In the 1994 field 
cage test, how many fruit flies were used per cage? In both tests, were 
the flies used fertile? What is the proportion of ripe to green fruit 
in the cages for each test?
    Response: In the five cage tests conducted during 1993-94, one cage 
was used per test. In certain tests, there was an average of 50 female 
Medflies released per cage, and in other tests, between 17 and 41 
female South American fruit flies released per cage. We believe that 
those are sufficient numbers to ensure valid tests.
    The fruit flies used in all of the tests were fertile, as is 
evident from the fruit fly larvae found in fully-ripe and overripe 
papayas that were used in the cage tests.
    The proportion of stage 1 papayas to stage 5 papayas in the cage 
tests varied from approximately 1:1 to approximately 2:1.
    Comment: During cage tests, what were the ambient conditions in the 
infestation cages during oviposition periods?
    Response: The ambient conditions during oviposition periods were 
not reported, but because of the fruit fly larvae detections in ripe 
and overripe fruit used in tests, it is evident that those conditions 
were suitable for survival of the eggs.
    Comment: Since a two-choice test (guava vs. papaya) was conducted 
in 1994, was a one-choice test considered after?
    Response: No. The two-choice test was conducted in 1994, after a 
single choice test had already been administered in 1993. We do not 
believe that it is necessary to re-administer a single choice test when 
the results from the first were available and acceptable.
    Comment: Are the conditions (fruit fly trap catches, sanitation of 
papaya fields, etc.) of Guanacaste, San Jose, and Punta Arenas, Costa 
Rica similar to those in Espirito Santo, Brazil?
    Response: Generally, yes, and areas in both Costa Rica and Brazil 
that are producing papayas for importation into the United States have 
to meet the same requirements, with the exception that areas in Costa 
Rica do not have a threshold requirement for South American fruit fly 
captures because South American fruit fly does not occur in Costa Rica. 
The Anastrepha spp. that occurs in Costa Rica feeds on different hosts 
than Brazil's South American fruit fly, and is not under any 
circumstances a pest of papaya.
    Comment: Even if papayas are considered an occasional host of both 
Medfly and South American fruit fly, the presence of unsanitary field 
conditions (e.g., abandoned fields) may cause papayas in Brazil to 
become common hosts for both Medfly and South American fruit fly.
    Response: According to research conducted in Brazil and Costa Rica, 
only fully ripe papayas may be considered an occasional host of Medfly 
or South American fruit fly.
    Further, under our systems approach, papayas from Brazil and Costa 
Rica will only be allowed to be imported into the United States if they 
are grown, packed, and shipped under the conditions specified in this 
rule, which include field sanitation measures and trapping in 
production areas. If there are abandoned groves nearby, and these 
groves draw fruit flies to commercial papaya production areas, trapping 
will

[[Page 12388]]

detect increasing fruit fly populations, and control measures or, if 
necessary, a halt to shipments will be required if fruit fly 
populations exceed stated levels. The trapping requirements and 
thresholds are discussed in detail below. Therefore, we are making no 
changes to the proposal in response to this comment.
    Comment: The proposed fruit fly trapping requirements are 
inadequate for quarantine security. No traps are required in highly 
sensitive areas, such as sites of other fruit-fly host plants, packing 
houses, abandoned groves, or cull piles. The stated thresholds for 
action are so high as to be meaningless; an infestation would have to 
be of enormous proportion to yield an average Jackson trap catch of 
greater than 7 Medflies per trap per week for an area the size of the 
State of Espirito Santo. A trapping threshold of one gravid female 
fruit fly or two adult male flies would be more in line with the 
biology of a reproducing population. The seven fly figure would be a 
more appropriate trigger to drop areas from the program. Also, 
infestations limited to a concentrated range are not addressed. 
Further, no actions or thresholds are given for South American fruit 
fly. The trapping requirement should be modified to account for these 
issues.
    Response: The main safeguard against fruit fly introduction into 
the United States is that less than one-half ripe papaya is not a host 
of Medfly or South American fruit fly. The trapping requirements we 
proposed guard against ``high infestation pressure'' in production 
fields, and each farm's weekly average of Medfly and South American 
fruit fly captures per trap will be individually calculated. First, we 
are establishing specific requirements for the placement, types, and 
monitoring of fruit fly traps in papaya production fields. 
Specifically, we are requiring that beginning at least 1 year before 
harvest begins and continuing through the completion of harvest, fruit 
fly traps must be maintained in the field where the papayas were grown. 
The traps must be placed at a rate of 1 trap per hectare and must be 
checked for fruit flies at least once weekly by plant health officials 
of the national Ministry of Agriculture. Fifty percent of the traps 
must be of the McPhail type, and fifty percent of the traps must be of 
the Jackson type.
    Second, we are establishing trapping thresholds that will trigger 
action if the fruit fly population in a papaya production area is too 
large. Specifically, in order to monitor the Medfly levels in 
commercial papaya production areas, we are establishing a threshold for 
Medfly captures in papaya production areas of Brazil and Costa Rica. 
The thresholds are as follows: If the average Jackson trap catch is 
greater than 7 Medflies per trap per week, measures, which may include 
Malathion bait sprays or other chemical sprays, must be taken to 
control the Medfly population in the production area. If the average 
Jackson trap catch exceeds 14 Medflies per trap per week, importations 
of papayas from that production area would be halted until the rate of 
capture drops to an average of 7 or fewer Medflies per trap per week.
    In addition, based on this and other comments, we are also 
establishing a threshold for South American fruit fly captures in 
papaya production areas of Brazil at Sec. 319.56-2w(j). The thresholds 
are as follows: If the average McPhail trap catch is greater than 7 
South American fruit flies per trap per week, measures, which may 
include Malathion bait sprays or other chemical sprays, must be taken 
to control the South American fruit fly population in the production 
area. If the average McPhail trap catch exceeds 14 South American fruit 
flies per trap per week, importations of papayas from that production 
area would be halted until the rate of capture drops to an average of 7 
or fewer South American fruit flies per trap per week.
    These thresholds for Medfly and South American fruit fly trapping 
will help detect increasing populations of these fruit flies in growing 
areas and will help ensure that these fruit flies are not associated 
with imports of papayas.
    The thresholds stated are adequate because we are not requiring 
that areas in Espirito Santo, Brazil, be pest-free for eligibility to 
export papayas to the United States. We only want to ensure that fruit 
fly populations do not exceed an acceptable level in papaya production 
areas in Brazil.
    APHIS does not believe that high fruit fly populations in abandoned 
groves or near cull piles represent a threat to commercial papaya 
growing areas. If high populations are generated by abandoned groves or 
cull piles, and those populations move into a commercial papaya 
production area, then trapping in the commercial area will identify a 
problem, and additional mitigation measures, including halting 
importations of papayas from that commercial production area until 
fruit fly captures reach an acceptable level, will be taken.
    Comment: The average Medfly catch for Vaversa farm was 50.44 
Medflies per trap per week. Therefore, in accordance with the proposed 
trapping thresholds, this farm would not be eligible to export papayas 
to the United States. What was the Medfly weekly trap catch for Honey 
Fruit, Agrobas, and Exofruit farms?
    Response: In 1996, the annual average Medfly catch for Vaversa farm 
was 50.44 Medflies per week. However, there were 20 traps on Vaversa 
farm, so the annual average of Medflies per trap per week was 2.522 
Medflies, a number well below the proposed thresholds of 7 Medflies per 
trap per week to begin mitigation measures in papaya production areas 
or 14 Medflies per trap per week to halt papaya imports into the United 
States.
    Yet, under the proposal, a farm's eligibility to export papayas to 
the United States would not be decided annually based on the annual 
average per trap per week, but decided weekly based on the weekly 
average per trap. Therefore, if the program had been active in 1996, 
and if Vaversa farm had met all of the other conditions of the 
regulations, it would have been eligible to export papayas to the 
United States during all weeks except those when the trapping 
thresholds exceeded 14 Medflies per trap per week. Additionally, during 
all weeks when the Medfly catch exceeded 7 flies per trap per week, 
mitigation measures would have been required to reduce the Medfly 
population in the production area.
    The 1994 average Medfly weekly trap catch for Honey Fruit farm 
amounted to .05 flies or fewer per trap per week. The 1994 average 
Medfly weekly trap catch for Agrobas farm amounted to .10 flies or 
fewer per trap per week. The 1994 average Medfly weekly trap catch for 
Exofruit farm also amounted to .10 flies or fewer per trap per week.
    Comment: Caliman, Vaversa, and Gaia farms all have a weekly trap 
average higher than 7 South American fruit flies per trap per week. 
Based on South American fruit fly captures, would these farms be 
eligible to export papayas to the United States? What is the South 
American fruit fly weekly trap catch for Honey Fruit, Agrobas, and 
Exofruit farms?
    Response: Although we believe papayas of any ripeness to be poor 
hosts for South American fruit fly, as discussed above, we are 
establishing trapping thresholds for South American fruit fly in papaya 
production areas in Espirito Santo, Brazil. These trapping thresholds 
will require that mitigation measures be taken if more than 7 South 
American fruit flies per trap per week are captured in a papaya 
production area. Further, if more than 14 South American fruit flies 
per trap per week are captured in a papaya production area, exports of 
papayas from that area will halt until the level of captures of

[[Page 12389]]

South American fruit flies drops to a maximum of 7 South American fruit 
flies per trap per week. These thresholds will help monitor and reduce 
the South American fruit fly population in papaya production areas in 
Espirito Santo, Brazil.
    Just as with Medfly trapping thresholds, South American fruit fly 
trapping thresholds will be based on the average weekly trap catch, and 
a farm's eligibility to export papayas to the United States will be 
determined on a week-to-week basis as a result of the number of South 
American fruit flies captured per trap per week.
    Based on the data provided by Brazil, the 1994 average South 
American fruit fly weekly trap catch for Caliman farm amounted to 2.3 
flies or fewer per trap per week. The 1994 average South American fruit 
fly weekly trap catch for Vaversa farm amounted to 1.2 flies or fewer 
per trap per week. The 1994 average South American fruit fly weekly 
trap catch for Gaia farm amounted to 3.2 flies or fewer per trap per 
week. The 1994 average South American fruit fly weekly trap catch for 
Honey Fruit farm amounted to 2.08 flies or fewer per trap per week. The 
1994 average South American fruit fly weekly trap catch for Exofruit 
farm amounted to 1 fly or fewer per trap per week. The 1994 average 
South American fruit fly weekly trap catch for Agrobas farm amounted to 
9.1 flies or fewer per trap per week. Under the provisions outlined in 
this document, during those weeks when a farm registers more than 7 
South American fruit flies per trap per week, mitigation measures to 
reduce the fruit fly population in the papaya production area must be 
taken.
    Comment: The use of simple averages to determine trap counts is 
insufficient. For example, if 1 trap out of 30 catches 200 fruit flies, 
and the other traps do not catch any fruit flies, the average for those 
30 traps would be 6.7 flies, a figure below the required average of 7 
flies per trap per week to begin mitigation measures. However, the 
papayas near the trap that catches 200 flies would be at a high risk 
for infestation. Therefore, another method of determining fruit fly 
population density should be considered.
    Response: We believe that averages are sufficient to determine a 
papaya production area's eligibility to import papayas into the United 
States. Variations in trap catches will occur among traps in a given 
production area, but prior trapping data indicates that your scenario 
is highly unlikely. However, if this situation occurs, required 
recordkeeping will identify areas where fruit fly populations are 
concentrated, and we will investigate the conditions in those areas, 
including ensuring that the surrounding traps are properly baited, that 
field sanitation has been performed in compliance with the regulations, 
and that, if necessary, bait spray treatments are applied to reduce 
fruit fly populations around traps with excessive fruit fly catches. 
Therefore, we are making no changes to the proposal in response to this 
comment.
    Comment: In response to a request for information, APHIS supplied 
trapping data for only three farms in 1996. There are far more than 
three farms in Espirito Santo. If this limited data constitutes all of 
the available data, how can a sound decision be made regarding the 
importation of papayas from Brazil?
    Response: In response to a request for information, APHIS supplied 
1994 trapping data for six farms, the total number of farms in Espirito 
Santo, and 1996 trapping data for three farms. This data, provided by 
Brazil, indicates the relative fruit fly population density and types 
of fruit flies in papaya production areas in Espirito Santo. We believe 
that the trapping data was adequate to enable us to design a systems 
approach for the importation of papayas from Brazil that is sufficient 
to prevent the introduction of Medfly and South American fruit fly into 
the United States.
    The regulations will require fruit fly traps to be maintained in 
papaya production areas in Brazil and Costa Rica beginning at least 1 
year before harvest begins and continuing through the completion of 
harvest. The traps must be placed at the rate of 1 trap per hectare and 
must be checked for fruit flies at least once a week by plant health 
officials of the national ministry of agriculture. Records of the fruit 
fly finds for each trap, updated each time the traps are checked, must 
be kept and must be made available to APHIS upon request. Prior to the 
commencement of papaya shipments from any papaya production area in 
Brazil or Costa Rica, we will review that most current fruit fly 
trapping information to determine which farms will be eligible to 
export their papayas to the United States and which farms will have to 
take mitigation measures to lower the fruit fly population in the area 
before exporting papayas to the United States.
    Comment: The 1996 trapping report for three farms in Espirito 
Santo, Brazil, did not state the trap density; without this 
information, we cannot assume that the traps were placed at 1 trap per 
hectare.
    Response: The placement of 1 trap per hectare is a requirement for 
the shipment of papayas to the United States from Brazil and Costa Rica 
under the systems approach outlined in this document. It was not a 
requirement for research; the trapping data mentioned was used to 
determine the relative fruit fly population density and types of fruit 
flies present in papaya production areas in Espirito Santo, Brazil. 
This information helped us decide whether to proceed with rulemaking, 
and to design a systems approach for the importation of papayas from 
Brazil. Further, on the farms in Espirito Santo that continue to trap 
for Medfly and South American fruit fly, traps are placed at a rate of 
1 trap per hectare, and we believe that number is adequate to indicate 
fruit fly populations in those papaya production areas.
    Comment: Papaya production areas in Brazil have not met the 1-year 
trapping requirement.
    Response: Brazil has provided USDA with trapping records for 1993-
1994 and 1996, and continues to trap for fruit flies in papaya 
production areas. For shipment of Brazilian papayas to the United 
States, we are requiring that beginning at least 1 year before harvest 
begins and continuing through the completion of harvest, fruit fly 
traps be maintained in the field where the papayas are grown. The traps 
must be placed at a rate of 1 trap per hectare and must be checked for 
fruit flies at least once weekly by plant health officials of the 
Brazilian Ministry of Agriculture. Therefore, we will not approve the 
importation of papayas from any production areas in Brazil unless those 
production areas provide the required current trapping data. At 
present, two farms in Espirito Santo have met the 1-year requirement 
for trapping.
    Comment: APHIS' description of eligible papayas as ``less than one-
half ripe'' is vague, difficult to convey to field personnel in Brazil, 
and impossible for U.S. inspectors to verify or enforce. The 
description should be more specific.
    Response: In our proposal, we used the phrase ``less than one-half 
ripe'' to describe the papayas that we proposed for entry into the 
United States from Espirito Santo, Brazil. However, we specifically 
stated that when picked, the papayas must appear as follows: ``shell 
surface no more than one-quarter yellow, surrounded by light green.'' 
That explanation appears in the regulations and is a detailed and 
accurate description of quarter-ripe papayas.
    For papaya growers, the standard industry practice for harvesting 
fruit abides by the following system: stage 1 and stage 2 papayas, 
papayas less than one-half ripe, are harvested for export;

[[Page 12390]]

stage 3 papayas, papayas that are one-half ripe, may be harvested for 
sale in the domestic market of the country or region in which the 
papaya production field is located; stage 4 and stage 5 papayas, 
papayas more than one-half ripe, may be used only for local 
consumption. This industry practice helps ensure that papayas arrive at 
market with an adequate shelf life. Brazil has successfully exported 
papayas to the European Union, Canada, and Argentina for many years, 
and in doing so, Brazilian papaya producers routinely follow the 
standard industry practice of harvesting papayas that are less than 
one-half ripe for export.
    Because of these factors, we do not expect any confusion about the 
ripeness of the papayas that will be eligible for importation into the 
United States. Therefore, we are making no changes to the proposed rule 
in response to this comment.
    Comment: To require someone on the line in a packing house to 
accurately determine that a particular papaya's shell surface is no 
more than one-quarter yellow surrounded by light green as thousands of 
papayas move along the conveyor belt is asking too much. Even a 
vigilant and careful inspector could not be expected to find papayas 
that are one-half or more ripe in that sea of papayas.
    Response: The determination of each papaya's ripeness will not be 
made as the papayas are moving along a conveyor belt; ripeness will be 
determined in the field as the papayas are picked and again in the 
packing house as the papayas are placed in cartons for shipment to the 
United States. In these instances, when individual attention is given 
to each papaya, a determination of ripeness is easily made.
    Further, this method of determining ripeness has proven successful 
for the importation into the United States of papayas from Costa Rica. 
Therefore, we believe that it is an effective and reliable way to 
ensure that only papayas that are less than one-half ripe are imported 
into the United States from Brazil and Costa Rica.
    Comment: A maturity index based on surface color of papayas is not 
a reliable method for determining the infestability of papayas.
    Response: We disagree. The field and cage tests conducted in Brazil 
and Costa Rica, as discussed earlier, prove that the surface color of 
papayas is an adequate determinant of the infestability of these 
papayas.
    Comment: Data regarding the levels of benzyl isothiocyanate (BITC) 
in Brazilian papayas, the correlation between the concentration of this 
chemical and quantified color stages of Brazilian papayas, or the 
effects of BITC on South American fruit fly should be presented before 
papayas from Brazil are allowed to enter the United States.
    Response: BITC, a naturally occurring chemical in papayas, has been 
determined to deter fruit fly oviposition in papayas, and when fruit 
fly eggs are laid in papayas, to prevent the survival of those eggs. 
The chemical is most concentrated in green papayas, and gradually 
dissipates as the papayas mature and ripen.
    We do not feel that it is necessary to examine levels of BITC in 
Brazilian papayas, the correlation between the concentration of this 
chemical and quantified color stages of Brazilian papayas, or the 
effects of BITC on South American fruit fly for papayas from Brazil. 
Our decision to allow papayas from Espirito Santo, Brazil, to be 
imported, under certain conditions, into the United States was based, 
in part, on research that demonstrates that papayas of all ripeness 
stages, using color as an indicator of ripeness, are not preferred 
hosts for Medfly or South American fruit fly. Further, this research 
demonstrates that less than one-half ripe papayas are not a host of 
Medfly or South American fruit fly in Brazil. As discussed earlier, 
researchers in Brazil tested papayas at all stages of ripeness, where 
the determinant of the ripeness was the surface color of the papayas. 
In field tests, no fruit flies were found in any of the papayas, 
regardless of ripeness. In forced tests, fruit flies only occasionally 
attacked fully-ripe or overripe papayas (surface color entirely 
yellow).
    Based on this and other research and on the success of the Costa 
Rican papaya program, we believe that using color as an indicator of 
ripeness, and therefore of resistance to fruit fly infestation, is 
sufficient to prevent the introduction of Medfly and South American 
fruit fly into the United States. Therefore, we are making no changes 
to the proposed rule in response to this comment.
    Comment: Studies in which objective colorimetric measurements of 
Brazilian papayas are correlated to natural or forced infestation by 
Medfly or South American fruit fly should be conducted before papayas 
from Brazil are allowed to enter the United States.
    Response: We do not agree that colorimetric measurements, 
measurements taken by a machine that looks at a portion of the surface 
color of the exterior of a commodity and generates a graph to indicate 
the ripeness of that commodity, are essential to determining whether 
less than one-half ripe papayas from Brazil are susceptible to 
infestation by Medfly or South American fruit fly. We believe that 
visual inspection of the papayas, as used in the research conducted in 
Brazil, serves the same purpose as colorimetric measurements and, in 
fact, is more effective because, unlike colorimetric measurements, 
visual inspection takes into account the range of colors on the entire 
exterior of the fruit.
    The visual ripeness index we are using for papayas from Brazil is 
the same as the one currently in use for papayas from Costa Rica. The 
Costa Rican system of determining papaya ripeness has proven to be 
effective in ensuring that only less than one-half ripe papayas are 
imported into the United States.
    Therefore, we are making no changes to the proposal in response to 
this comment.
    Comment: APHIS should cut open papayas from Brazil arriving in the 
United States to determine if larvae are present, and the papayas 
should be inspected for eggs and held for pupal emergence.
    Response: As a condition of entry, all fruits and vegetables 
imported into the United States are subject to inspection for injurious 
plant pests at the port of first arrival. If the papayas show any signs 
of pest infestation, including soft spots, bruises, or small holes in 
the surface, the papayas will be cut open and examined by a USDA 
inspector. Because of the systems approach that will be required of 
papayas to be imported from Brazil and Costa Rica, there is no need to 
examine papayas that do not exhibit any signs of pest infestation, or 
hold papayas for larval emergence, at the U.S. port of arrival. 
Therefore, we are making no changes to the proposal in response to this 
comment.
    Comment: Two disease-causing organisms, Cercospera mamaonis and 
Phomopsis carica-papayae, are not addressed by the proposed risk 
mitigation measures. Measures should be taken to reduce the risk of the 
introduction of these fungi into the United States.
    Response: We expect that the proposed hot water treatment, 
consisting of 20 minutes in water at 49  deg.C (120.2  deg.F), will 
reduce the risk of the introduction into the United States of 
Cercospera mamaonis and Phomopsis carica-papayae, as well as any other 
injurious plant pests that may be associated with the papayas. However, 
as a condition of entry, all fruits and vegetables imported into the 
United

[[Page 12391]]

States are subject to inspection for injurious plant pests at the port 
of first arrival. Both Cercospera mamaonis and Phomopsis carica-papayae 
are visually detectable by inspection. If inspectors at the U.S. port 
of arrival determine that a shipment of papayas is infested with pests 
of concern, including Cercospera mamaonis and Phomopsis carica-papayae, 
that shipment will be either treated, destroyed, or re-exported to 
prevent dissemination of the pests in the United States. Therefore, we 
are making no changes to the proposed rule in response to this comment.
    Comment: The proposed hot water treatment will not reduce the 
likelihood that papayas will introduce injurious plant pests into the 
United States, and it is certainly not a sufficient treatment to attain 
probit 9 quarantine security in regard to Medfly larvae in papayas. 
Twenty minutes at 120.2 degrees Fahrenheit is just one part of a longer 
2 stage treatment which APHIS abolished for Hawaiian papayas in 1991 
due to its ineffectiveness against larvae of Medfly and Oriental fruit 
fly. Moreover, that original treatment called for papayas to be one-
quarter ripe, not one-half ripe as proposed for Brazilian papaya. 
Medfly requires a hot water treatment of approximately 48 degrees 
Celsius for 50 minutes to reach thermal death of eggs and larvae; no 
information is available regarding the efficacy of hot water treatment 
on Anastrepha species. This proposed requirement should be 
reconsidered.
    Response: As recommended by quarantine specialists with Agriculture 
Research Services, USDA, the proposed hot water treatment for papayas 
from Brazil is one component of a systems approach; it is not intended 
to be a stand-alone treatment for Medfly or South American fruit fly. 
Taken together, the components of the systems approach are sufficient 
to mitigate the risk of the introduction of Medfly and South American 
fruit fly, as well as other injurious plant pests, into the United 
States.
    The hot water treatment that was in effect for the post harvest 
quarantine treatment of Hawaiian papaya was designed to reduce the risk 
of the interstate movement of Medfly, Oriental fruit fly, and melon fly 
to the mainland United States. However, because the treatment proved to 
be ineffective against Oriental fruit fly in papayas that exhibit 
blossom end defect, APHIS withdrew the use of the 2-stage hot water 
treatment for Hawaiian papayas. While Hawaii has a high population of 
Oriental fruit fly in Hawaii, Oriental fruit fly does not occur in 
Brazil or Costa Rica. Therefore, we are making no changes to the 
proposal in response to this comment.
    Comment: PPQ's Treatment Manual does not contain an approved hot 
water treatment for papayas. Additionally, a design for a treatment 
facility has not been approved, nor a process tested and approved, nor 
are APHIS personnel required to be present at a hot water treatment 
facility, in the fields, or in the packing houses. Therefore, we 
question the efficacy of such a treatment. The proposal does not 
specify whether facilities that will conduct the hot water treatment 
for Brazilian papayas will have to be approved by APHIS or will have to 
meet certain performance standards. We suggest that these facilities 
either be approved or be required to achieve certain standards prior to 
the importation into the United States of papayas from Brazil.
    Response: Hot water treatment of papayas for export from Brazil is 
standard industry practice, but it is not a probit 9 stand-alone 
treatment. We are requiring it as one component of a systems approach 
to the importation into the United States of papayas from Brazil. 
Therefore, the hot water treatment need not be approved as a stand-
alone treatment would be, nor do the facilities that will conduct the 
hot water treatment need to be approved. The specifications of the 
treatment will be in the regulations, and, therefore, do not need to 
appear in the PPQ Treatment Manual. However, when papayas from Brazil 
are imported into the United States, the Brazilian Ministry of 
Agriculture is required to certify that hot water treatment has been 
conducted, as required. Therefore, we are making no changes to the 
proposed rule in response to this comment.
    Comment: What is the probit 9 hot water treatment for South 
American fruit fly?
    Response: We are not aware of a probit 9 hot water treatment for 
South American fruit fly.
    Comment: The proposal does not specify quarantine security measures 
for packing areas. Such security measures should be considered.
    Response: We agree. In response to this comment, we are adding at 
Sec. 319.56-2w(e) a provision that papayas from Brazil and Costa Rica 
must be safeguarded from exposure to fruit flies from harvest to 
export. This would require that from the moment the papaya is picked 
from the tree to the time that it reaches the United States, including 
in packing houses in Brazil and Costa Rica, the papaya will be 
safeguarded from fruit fly infestation. In order to meet this 
provision, trucks that move papayas from the orchard to the packing 
house will have to be covered or screened in some manner that prevents 
access by fruit flies. The packing house will also have to be 
constructed so as to prevent entry by fruit flies. Finally, the cartons 
that the papaya is shipped in will have to be fruit fly-proof or 
covered by fruit fly-proof material. This provision will help reduce 
the risk of the introduction into the United States of Medfly, South 
American fruit fly, and other pests that may be associated with papayas 
from Brazil and Costa Rica.
    Comment: Culls and fallen fruit are to be ``removed from the field 
at least twice a week,'' but there is no provision for the destruction 
of culls and fallen fruit.
    Response: We agree that there should be a requirement for the 
destruction of culls and fallen fruit. Therefore, we are adding a 
provision at Sec. 319.56-2w(b) that culls and fallen fruit must be 
buried, destroyed, or removed from the farm. This provision will help 
reduce the risk of increased Medfly and South American fruit fly 
populations in and near papaya production areas in Brazil.
    Comment: Does the sanitation procedure described in the proposal 
apply to backyards? What is the manpower allocated to perform this 
task?
    Response: No, the sanitation procedure does not apply to backyards 
in Brazil because the conditions set out in the regulations will 
preclude the eligibility of backyard papayas for importation into the 
United States.
    The manpower assigned to keep commercial papaya production fields 
clean will be determined by individual papaya producers in Brazil and 
will vary according to the needs of those producers to achieve the 
desired results.
    Comment: How can APHIS guarantee that all papaya trees in Espirito 
Santo will be kept free of one-half or more than one-half ripe papayas?
    Response: Only commercial papaya production areas in Espirito Santo 
that grow papayas from importation into the United States will be 
required to be kept free of one-half or more than one-half ripe 
papayas. Besides the fact that it is standard industry practice to keep 
trees in commercial papaya production areas free of fruit that is one-
half or more ripe, this program will be supervised by the Brazilian 
Ministry of Agriculture and monitored by APHIS. Therefore, we are 
confident that this requirement will be met.
    Comment: APHIS should take a more active role in monitoring the 
harvesting, packing, and shipping of papayas under the proposed 
protocol, and a trust fund agreement should be established to pay

[[Page 12392]]

for U.S. inspectors in the fields, packing houses, and ports in Brazil. 
The proposed systems approach depends on the full and careful 
compliance of Brazilian workers who have little or no training or 
experience in making sure each of the proposed conditions is met. 
Certain conditions, such as the hot water treatment, require precise 
monitoring. In addition, Brazilian papaya producers arguably have a 
conflict of interest in fully enforcing these conditions. Without an 
established performance history, there is no basis to conclude that 
Brazilian workers or the Brazilian Ministry of Agriculture will 
unfailingly meet the requirements of the regulations.
    Response: In the initial phases of the Brazilian papaya program, 
APHIS's International Services (IS) employees will visit the production 
and packing areas to ensure that the components of the systems approach 
are being met, and throughout the program, these APHIS employees will 
act as a ready resource for the Brazilians.
    Regarding the compliance of the Brazilians, as discussed earlier, 
Brazil has been exporting its papayas to the European Union, Canada, 
and Argentina for many years; therefore, in Brazil, papaya producers 
and their employees have experience and training in preparing papayas 
for export. Further, most of the conditions that we are requiring for 
the importation of papayas from Brazil are standard industry practice; 
normal commercial practice includes picking papayas for export when the 
papayas are green or less than half ripe, maintaining a high degree of 
sanitation in production areas, and treating the fruit with a hot water 
treatment to inhibit disease. Other conditions, such as trapping 
measures, have been in use for several years in order to provide data 
for this action.
    We do not agree that meeting the conditions for importation is a 
conflict of interest for Brazilian workers; Brazilian producers and 
their employees want to be eligible to export fresh, healthy papayas to 
the United States that will compete well in the U.S. market. Therefore, 
deviation from required phytosanitary measures would not be in the 
self-interest of the Brazilians.
    Therefore, we are making no changes to the proposed rule in 
response to this comment.
    Comment: If the Environmental Protection Agency (EPA), in 
accordance with the Food Quality Protection Act (FQPA), reassesses and 
subsequently cancels all tolerances for malathion, would that prevent 
the importation of malathion-treated papayas? If not, how would State 
and Federal officials contain and eliminate future Medfly outbreaks? 
Finally, what other pesticides might be used in Brazil and Costa Rica 
to ensure the same level of safety as malathion and might these 
pesticides also be subject to FQPA restrictions?
    Response: EPA cannot regulate the use of pesticides in other 
countries; therefore, if EPA cancels all tolerances for malathion for 
domestic use, the pesticide may still be used in Brazil, Costa Rica, 
and other countries. Further, even if malathion may no longer be used 
as a treatment in the United States, malathion-treated papayas would 
still be permitted to be imported into the United States if the papayas 
meet all other applicable requirements, including requirements 
contained in EPA regulations at 40 CFR part 180 concerning pesticide 
residue tolerances. The EPA regulations would also apply to any other 
pesticide residues that may be found on the papayas at the U.S. port of 
first arrival. (Other commenters suggested that abamection, dicofol, 
endosulfan, tetradifon, and methyl thipphanate may be used on papayas 
in Brazil.) With respect to the emergency use of malathion for Medfly 
outbreaks in the United States, we have already started using other 
methods, including the release of sterile flies, in combination with 
malathion to contain and eliminate future Medfly outbreaks, and 
continue to explore alternative strategies.
    Comment: Chemicals that are not registered by EPA are routinely 
applied to papayas in Brazil. Such pesticides include abamectin, 
dicofol, endosulfan, tetradifon, and methyl thipphanate. At a minimum, 
APHIS should notify the Food and Drug Administration (FDA) that such 
pesticides are used on papayas in Brazil so that residue may be checked 
at U.S. borders. Additionally, APHIS should notify the Brazilian 
government and industry that such pesticides are not permitted on 
papayas imported into the United States. Certification that states that 
these pesticides have not been used on the papayas should accompany the 
papayas to the United States. APHIS should not endanger the health of 
the American public by encouraging the importation of products which it 
knows to have a high probability of containing illegal pesticides.
    Response: Based on information obtained from FDA, APHIS believes 
that the issues concerning pesticide residues found on papayas imported 
from Brazil are no different than the issues associated with the 
importation of produce from any other foreign country.
    EPA is responsible for registering pesticides for use in the United 
States. EPA also has the responsibility to establish limits, or 
tolerances, for pesticide residues in both raw agricultural commodities 
and processed foods; these tolerances are located at 40 CFR part 180 
and apply to both imported and domestically grown foods. EPA-
established tolerances are commodity specific and represent the maximum 
amount of pesticide residue that may legally remain in food. In the 
absence of a tolerance, any level of pesticide residue is prohibited. 
Currently, EPA regulations do not list tolerances for pesticide 
residues of abamectin, dicofol, endosulfan, tetradifon, or methyl 
thipphanate on papayas. FDA is responsible for enforcing EPA pesticide 
residue tolerances and for determining whether an imported food 
violates the Federal Food, Drug, and Cosmetic Act.
    FDA collects samples for residue testing early in the marketing 
chain to afford the greatest opportunity for determining the source of 
illegal residues (e.g., the grower). This system prevents the flow of 
further shipments that may contain the same residues. Thus, for 
imported foods, FDA collects samples directly at the port of entry. FDA 
sampled shipments are not allowed to be marketed until the results of 
the FDA testing are known and the shipments are released by the Agency. 
When illegal pesticide residues are found in an imported food shipment, 
the shipment is refused entry and required to be destroyed or shipped 
out of the United States. FDA may also invoke automatic detention of 
subsequent related shipments.
    In 1994, FDA collected and analyzed a total of 11,348 food samples 
for pesticide residues under its regulatory monitoring programs. Of 
these, 5,448 samples, or 48 percent, were surveillance samples of 
imported foods from 101 countries. Overall, no violative residues were 
found in nearly 96 percent of the import surveillance samples, and 67 
percent had no residues detected. Less than 1 percent of the import 
samples had pesticide residues that exceeded EPA tolerances, a finding 
that is about the same as the percentage of domestic samples that 
exceeded tolerances. Approximately 3 percent of import samples were 
found to contain residues of pesticides for which there is no 
established U.S. tolerance for the particular pesticide commodity 
combination.
    We believe that the mechanisms that have been established to 
monitor pesticide residues on imported produce are adequate to detect 
if residues found

[[Page 12393]]

on papayas imported from Brazil are in violation of tolerances 
established by EPA. Therefore, we are making no changes to the proposed 
rule in response to this comment.
    Comment: What is the harvest interval after spray for each chemical 
pesticide used in papaya production areas in Espirito Santo, Brazil? 
Has this work been done according to EPA regulations?
    Response: We do not expect liberal pesticide applications to papaya 
production areas in Brazil; we expect that pesticides will be applied 
when mitigation measures are required in papaya production areas 
because of elevated Medfly or South American fruit fly populations. 
Therefore, we have not established a required harvest interval after 
chemical spray. Further, standard industry practice, including the 
required hot water treatment, calls for cleaning the surface of the 
papayas to remove as much of the pesticide residue as possible before 
the fruit is exported. Regarding EPA regulations, as discussed earlier, 
EPA cannot regulate the application of pesticides in foreign countries.
    Comment: APHIS' reliance on inspections at the border has been 
seriously questioned in a very recent report issued by the General 
Accounting Office (GAO). In its report, GAO estimates that foreign 
pests are entering the United States at a level that is costing $41 
billion annually in lost production and expenses for prevention and 
control, and that inspectors are ``struggling to keep pace with 
increased workloads'' (GAO Report GAO/RCED-97-102, May 1997).
    Response: We believe it is important to emphasize that the 
Agricultural Quarantine Inspection (AQI) activities of APHIS are an 
important, but not the only, component of our system for safeguarding 
plant and animal resources from exotic pests and diseases. Regarding 
papayas from Brazil, we have designed a systems approach, with 
inspection at the U.S. port of arrival as one component, that provides 
protection against the introduction into the United States of injurious 
plant pests.
    According to the GAO report, USDA estimates that foreign pests are 
entering the United States at a level that is costing $41 billion 
annually in lost production and expenses for prevention and control. In 
terms of imported fruits and vegetables, the greatest risk of plant 
pest introduction into the United States is non-commercial shipments of 
imported fruits and vegetables, including those entering the United 
States in international passenger baggage. Therefore, we do not believe 
that the conclusions of the study are relevant to the importation of 
commercial shipments of papayas from Brazil or Costa Rica.
    Comment: We are concerned about your proposal to allow papayas from 
Brazil to be imported into the United States because very recently 
Florida had to conduct a costly and inconvenient eradication program 
because of a Medfly outbreak in the State.
    Response: The recent Medfly outbreak in Florida is a major concern 
for us as well, but there is no indication that it was a result of 
legally imported fruits and vegetables for consumption. Regarding the 
importation of papaya from Brazil and Costa Rica, as discussed, less 
than one-half ripe papayas are not a host of Medfly. This final rule 
imposes requirements on the importation of papayas from Brazil and 
Costa Rica, in the unlikely event that a Medfly is attracted to a 
papaya in either country. We are confident that this final rule will 
allow papayas from Brazil and Costa Rica to be imported into the United 
States while continuing to provide protection against the introduction 
of Medfly into the United States.
    Comment: The proposal is not in line with the law, which states 
that APHIS must take action to ``prevent the dissemination into the 
United States'' of plant pests.
    Response: We disagree. We have designed a required set of 
phytosanitary safeguards, or systems approach, to allow for the 
importation of papayas from Brazil while preventing the introduction 
and dissemination of injurious plant pests into the United States.
    Comment: Both 7 U.S.C. 159 and 160 require a hearing before APHIS 
can allow the importation of papayas from Brazil. Until such a hearing 
is held, APHIS should not finalize this proposal.
    Response: Prior to January 8, 1983, 7 U.S.C. 159 and 160 directed 
the Secretary to hold a public hearing before promulgating a 
determination to ``restrict'' (7 U.S.C. 159) or ``forbid'' (7 U.S.C. 
160) the importation into the United States of plants or plant products 
that may result in the introduction of injurious plant pests into the 
United States. However, on January 8, 1983, Public Law 97-432 struck 
out the provisions in both 7 U.S.C. 159 and 160 directing the Secretary 
to hold a public hearing before promulgating a determination regarding 
the restriction or prohibition of a plant or plant product's entry into 
the United States. We believe the public comment period for this 
rulemaking provided adequate opportunity for interested persons to 
comment on the proposed rule. Therefore, we are taking no action in 
response to this comment.
    Comment: An environmental impact assessment should have been 
performed for this proposed action, particularly because a fruit fly 
infestation in the United States as a result of imported papayas from 
Brazil would provoke eradication measures that may include malathion 
bait sprays over potentially large rural and urban areas.
    Response: An environmental assessment and finding of no significant 
impact have been prepared by APHIS for this action. The environmental 
assessment provides a basis for our conclusion that the importation 
into the United States of papayas from Brazil will not present a 
significant risk of introducing plant pests into the United States or 
disseminating plant pests within the United States and will not have a 
significant impact on the quality of the human environment. Based on 
its finding of no significant impact, the Animal and Plant Health 
Inspection Service has determined that an environmental impact 
statement need not be prepared.
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection 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 those documents are 
requested to call ahead on (202) 690-2817 to facilitate entry into the 
reading room. In addition, copies of the environmental assessment and 
finding of no significant impact may be obtained by writing to the 
individual listed under FOR FURTHER INFORMATION CONTACT. Please refer 
to the title of the environmental assessment when ordering copies.
    Comment: In the proposed rule under the heading ``Executive Order 
12988,'' APHIS maintained that fresh fruit imported into the United 
States remains in foreign commerce until sold to the ultimate consumer 
and that, therefore, this rule would preempt State and local laws. It 
is not true that tropical fruits, and papayas in particular, remain in 
foreign commerce until the product is sold to the ultimate consumer 
(i.e., the person who eats the fruit). In fact, the U.S. Customs 
Service has determined that produce displayed in bins at retail grocery 
stores do not require labeling as to the country of origin because the 
retail customer is not the ultimate consumer, the store itself is. 
Therefore, papayas sitting in the grocery store are

[[Page 12394]]

no longer in foreign commerce. As such, State and local laws should not 
be preempted; they should apply in this case so that a State may 
restrict the entry of papayas from Brazil because of the pest risk to 
that State.
    Response: It is our position that State and local laws and 
regulations regarding papayas imported under this rule will be 
preempted while the papayas are in foreign commerce. Fresh fruits and 
vegetables are generally imported for immediate distribution and sale 
to the consuming public, and are considered to 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 the regulations allow a foreign plant or plant part, in this 
case papayas, to be imported into a State, that State does not have 
authority to refuse the plant or plant part entry, either directly from 
the port of arrival, or from another State. The Federal Government 
retains jurisdiction over all plants and plant parts while they are in 
foreign commerce. If the Secretary of Agriculture does not prohibit or 
restrict the importation of a plant or plant part, any such prohibition 
or restriction is deemed to be unnecessary. When foreign commerce 
ceases is a question of fact that must be addressed in each individual 
case. However, the Department of Agriculture has taken the position 
that fresh fruits and vegetables imported into the United States for 
immediate distribution and sale remain in foreign commerce until they 
are sold to the ultimate consumer. Other questions regarding when 
foreign commerce ceases must be addressed on a case-by-case basis and 
will be resolved based on the facts in each particular case.
    For these reasons, a State may not legally prohibit the entry of a 
foreign plant or plant part into the State if the plant or plant part 
is allowed importation into the State under the regulations. Any State 
that believes it should or should not be included as a restricted 
destination in the regulations should present its case to the 
Administrator of APHIS. Therefore, we are making no changes to the 
proposed rule in response to this comment.
    Therefore, based on the rationale presented in the May 25, 1997, 
proposed rule, the September 25, 1997, document, and this final rule, 
we are adopting the provisions of these documents as a final rule with 
the changes discussed above.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register. Immediate 
implementation of this rule is necessary to provide relief to those 
persons who are adversely affected by restrictions we no longer find 
warranted. Therefore, the Administrator of the Animal and Plant Health 
Inspection Service has determined that this rule should be effective 
upon publication in the Federal Register.

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 the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    In accordance with 5 U.S.C. 604, we have performed a Final 
Regulatory Flexibility Analysis, which is set out below, regarding the 
economic 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 papayas from Brazil and Costa Rica to 
be imported into the United States under specified conditions. The 
importation of papayas from Brazil had been prohibited because of the 
risk that they could have introduced injurious plant pests into the 
United States. This rule also makes changes to the requirements for 
importing papayas from Costa Rica, but those changes are not expected 
to have any effect on the volume of papayas exported to the United 
States from Costa Rica.
    The rulemaking pertaining to papayas from Brazil is based on a pest 
risk assessment conducted by APHIS at the request of the Brazilian 
Ministry of Agriculture.
    In 1995, the United States produced 23,042 metric tons (fresh 
equivalent) of papayas for human consumption, valued at $18.5 million. 
In 1993 and 1994, the United States produced 28,939 metric tons and 
28,123 metric tons, respectively, of papayas for human consumption.
    Imports into the United States of fresh papayas have grown rapidly, 
to the point where imports now exceed U.S. production levels of papayas 
for human consumption. In 1995, the United States imported 33,288 
metric tons of fresh papayas, a significant increase over the 1993 and 
1994 levels (14,198 metric tons and 18,677 metric tons, respectively). 
The increase in U.S. imports of fresh papayas since 1993 is due almost 
entirely to increased shipments from Mexico, the source of most U.S. 
papaya imports. The United States is a net importer of fresh papayas, 
as exports of the commodity from the United States did not exceed 8,293 
metric tons in any of the years between 1993 and 1995.
    In 1992, papayas were produced on 519 farms in the United States. 
It is not known how many of those farms are considered small entities 
under Small Business Administration standards, since information on 
their sizes is not available. However, most are probably small, since 
most U.S. farms whose revenues are derived primarily from the sale of 
fruits and tree nuts are considered small.
    In 1993, Brazil was the world's largest producer of papayas. In 
that year, Brazil produced an estimated 1,750,000 metric tons of 
papayas, 30.1 percent of the world's total. No data is available, 
however, on the volume of potential exports of this commodity from 
Brazil to the United States.
    The alternative to this rule was to make no changes in the 
regulations. After consideration, we rejected this alternative because 
there is no biological reason to prohibit the importation into the 
United States of papayas from Brazil.
    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 one comment on the Initial Regulatory 
Flexibility Analysis contained in the proposed rule.
    The commenter disagreed with our assessment that the proposed rule 
would not have a significant impact on small entities in the United 
States. The commenter argued that the rule has the potential to have a 
significant adverse impact on the approximately 30 papaya growers 
located in Florida, all of whom are small in size. The commenter points 
out that Brazil, because it is the world's largest papaya producer, has 
the potential to flood the U.S. market, effectively driving Florida's 
producers out of business. The commenter states that Hawaii and Florida 
produce all the

[[Page 12395]]

papayas that are commercially grown in the United States: Hawaii grows 
about 2,500 acres of papayas, with a value of $17 million; Florida has 
500 acres of papayas, with a value of $3 million. The commenter 
suggests, however, that Hawaiian producers will not be directly 
affected by the proposal because Brazilian papayas would not be 
permitted to move into Hawaii.
    We agree that the proposal has the potential to adversely affect 
papaya producers in Florida. However, to the extent that an adverse 
impact occurs at all, we are not convinced that it will be significant 
for most growers.
    Growers in Florida and Hawaii could be affected because the 
proposal has the potential to reduce the prices at which they are able 
to sell their papayas. Those prices would decline if a large volume of 
Brazilian papayas were made available in the U.S. market at prices 
lower than those currently being accepted by domestic producers. The 
volume of potential papaya imports from Brazil will depend on a variety 
of factors, such as the extent to which Brazilian imports are price 
competitive with papayas produced in the United States and with papayas 
imported into the United States from Mexico and elsewhere. The volume 
will also depend on the price Brazil receives for its papayas 
elsewhere, including its existing export markets. The degree to which 
Brazilian imports are price competitive depends, in turn, on several 
factors, including production costs in Brazil and the costs of 
transporting papayas to the U.S. market.
    There is, however, the potential for a considerable volume of 
papaya imports from Brazil. Brazil is the world's leading papaya 
producer and Espirito Santo, the State within Brazil from which imports 
would be allowed, accounts for almost half of Brazil's total papaya 
production. In 1991, the State of Espirito Santo produced 134,800 tons 
of papayas, 45 percent of Brazil's total papaya production of 299,400 
tons. By comparison, production in the United States in 1995 totaled 
only 23,042 metric tons (utilized, fresh equivalent).
    Nevertheless, there are several reasons that this rule may not have 
a significant adverse impact on a substantial number of Florida 
growers. First, no more than three or four papaya producers in Florida 
grow papayas exclusively or as a primary crop; most grow other crops in 
addition to papayas. In Florida, papayas are typically a temporary crop 
that is used to fill in the space between rows of newly-planted 
permanent crops (e.g., mangoes) until such time as the permanent crops 
mature. Therefore, even if Florida papaya growers are adversely 
affected by the rule change, the impact on most will not be significant 
in terms of their overall operations.
    Second, Florida's papaya growers are apparently able to remain 
financially viable in the face of sharply increasing imports from 
Mexico. This suggests to us that: (1) Florida's growers are able to 
successfully adapt to the increased competition by switching to 
alternative crops, or (2) papaya sales are not significant in terms of 
their overall operations.
    Third, the volume of potential imports from Brazil is unknown. 
Thus, even if it is assumed that most Florida papaya growers do rely 
heavily on papaya sales, there is no basis to conclude that they will 
automatically be affected. The commenters speculate that the volume 
will be large (relative to U.S. production) on the basis of Brazil's 
status as the world's leading papaya producer. However, that 
speculation may not be correct, since the volume of imports would 
depend on more than just production levels in Brazil. Indeed, it may be 
virtually impossible for Brazilian papayas to compete with Mexican 
papayas in the U.S. market on the basis of price and quality. Brazilian 
imports would be severely disadvantaged because of higher 
transportation costs to the U.S. market.
    The commenter also argued that this rule is significant and should 
have undergone review by the Office of Management and Budget (OMB).
    As required by Executive Order 12866, APHIS submitted a description 
of the proposed and final rules to OMB.

Executive Order 12988

    This rule allows papayas to be imported into the United States from 
Brazil. State and local laws and regulations regarding papayas imported 
under this rule will be preempted while the fruit is in foreign 
commerce. Fresh papayas 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.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this rule. The assessment provides a basis for 
the conclusion that the importation of papayas from Brazil will not 
present a risk of introducing or disseminating plant pests and would 
not have a significant impact on the quality of the human environment. 
Based on the finding of no significant impact, the Administrator of the 
Animal and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), (2) Regulations of the 
Council on Environmental Quality for implementing the procedural 
provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations 
implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing 
Procedures (7 CFR part 372).
    Copies of the environmental assessment and finding of no 
significant impact are available for public inspection 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 copies are requested to 
call ahead on (202) 690-2817 to facilitate entry into the reading room. 
In addition, copies may be obtained by writing to the individual listed 
under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this final rule have been approved by the Office of 
Management and Budget (OMB) under OMB control number 0579-0128.

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).

    2. Section 319.56-2w is revised to read as follows:

[[Page 12396]]

Sec. 319.56-2w  Administrative instruction; conditions governing the 
entry of papayas from Brazil and Costa Rica.

    The Solo type of papaya may be imported into the continental United 
States, Alaska, Puerto Rico, and the U.S. Virgin Islands from the State 
of Espirito Santo, Brazil, and the provinces of Guanacaste, San Jose, 
and Puntarenas, Costa Rica, only under the following conditions:
    (a) The papayas were grown and packed for shipment to the United 
States in the State of Espirito Santo, Brazil, or in the provinces of 
Guanacaste, San Jose, and Puntarenas, Costa Rica.
    (b) Beginning at least 30 days before harvest began and continuing 
through the completion of harvest, all trees in the field where the 
papayas were grown were kept free of papayas that were \1/2\ or more 
ripe (more than \1/4\ of the shell surface yellow), and all culled and 
fallen fruits were buried, destroyed, or removed from the farm at least 
twice a week.
    (c) The papayas were treated with a hot water treatment consisting 
of 20 minutes in water at 49  deg.C (120.2  deg.F).
    (d) When packed, the papayas were less than \1/2\ ripe (the shell 
surface was no more than \1/4\ yellow, surrounded by light green), and 
appeared to be free of all injurious insect pests.
    (e) The papayas were safeguarded from exposure to fruit flies from 
harvest to export, including being packaged so as to prevent access by 
fruit flies and other injurious insect pests. The package containing 
the papayas does not contain any other fruit, including papayas not 
qualified for importation into the United States.
    (f) All cartons in which papayas are packed must be stamped ``Not 
for importation into or distribution in HI.''
    (g) All activities described in paragraphs (a) through (f) of this 
section were carried out under the supervision and direction of plant 
health officials of the national Ministry of Agriculture.
    (h) Beginning at least 1 year before harvest begins and continuing 
through the completion of harvest, fruit fly traps were maintained in 
the field where the papayas were grown. The traps were placed at a rate 
of 1 trap per hectare and were checked for fruit flies at least once 
weekly by plant health officials of the national Ministry of 
Agriculture. Fifty percent of the traps were of the McPhail type, and 
fifty percent of the traps were of the Jackson type. If the average 
Jackson trap catch was greater than 7 Medflies per trap per week, 
measures were taken to control the Medfly population in the production 
area. The national Ministry of Agriculture kept records of fruit fly 
finds for each trap, updated the records each time the traps were 
checked, and made the records available to APHIS inspectors upon 
request. The records were maintained for at least 1 year.
    (i) If the average Jackson trap catch exceeds 14 Medflies per trap 
per week, importations of papayas from that production area must be 
halted until the rate of capture drops to an average of 7 or fewer 
Medflies per trap per week.
    (j) In the State of Espirito Santo, Brazil, if the average McPhail 
trap catch was greater than 7 South American fruit flies (Anastrepha 
fraterculus) per trap per week, measures were taken to control the 
South American fruit fly population in the production area. If the 
average McPhail trap catch exceeds 14 South American fruit flies per 
trap per week, importations of papayas from that production area must 
be halted until the rate of capture drops to an average of 7 or fewer 
South American fruit flies per trap per week.
    (k) All shipments must be accompanied by a phytosanitary 
certificate issued by the national Ministry of Agriculture stating that 
the papayas were grown, packed, and shipped in accordance with the 
provisions of this section.

(Approved by the Office of Management and Budget under control 
number 0579-0128)

    Done in Washington, DC, this 10th day of March 1998.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-6536 Filed 3-12-98; 8:45 am]
BILLING CODE 3410-34-P