[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65645-65649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31714]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 97-005-2]


Fruit From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are allowing abiu, atemoya, longan, rambutan, and sapodilla 
to be moved interstate from Hawaii if the fruit undergoes irradiation 
treatment at an approved facility. Treatment may be conducted either in 
Hawaii or in non-fruit fly supporting areas of the mainland United 
States. The fruit will also have to meet certain additional 
requirements, including packaging requirements. We are also allowing 
durian to be moved interstate from Hawaii if the durian is inspected 
and found free of certain plant pests. In addition, we are allowing 
certain varieties of green bananas to move interstate from Hawaii under 
certain conditions intended to ensure the bananas' freedom from plant 
pests, including fruit flies. These actions will relieve restrictions 
on the movement of these fruits from Hawaii while continuing to provide 
protection against the spread of injurious plant pests from Hawaii to 
other parts of the United States.

EFFECTIVE DATE: November 30, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Staff 
Officer, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River 
Road Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian Fruits and Vegetables regulations, contained in 7 CFR 
318.13 through 318.13-17 (referred to below as the regulations), 
govern, among other things, the interstate movement of fruits and 
vegetables from Hawaii. The regulations are necessary to prevent the 
spread of dangerous plant diseases and pests that occur in Hawaii, 
including the Mediterranean fruit fly (Ceratitis capitata), the melon 
fly (Bactrocera cucurbitae), the Oriental fruit fly (Bactrocera 
dorsalis), and the Malaysian fruit fly (Bactrocera latifrons). These 
types of fruit flies are collectively referred to in this document as 
``fruit flies.''
    On June 10, 1998, we published in the Federal Register (63 FR 
31675-31678, Docket No. 97-005-1) a proposal to allow abiu (Pouteria 
caimito), atemoya (Annona squamosa x A. cherimola), longan (Dimocarpus 
longan), rambutan (Nephelium lappaceum), and sapodilla (Manilkara 
zapota) to be moved interstate from Hawaii if, among other things, the 
fruits undergo irradiation treatment in accordance with Sec. 318.13-4f 
of the regulations. We also proposed to allow durian (Durio zibethinus) 
to be moved interstate from Hawaii if it is inspected and found free of 
plant pests. In addition, we proposed to allow green bananas (Musa 
spp.) of the cultivars ``Williams,'' ``Valery,'' and dwarf

[[Page 65646]]

``Brazilian'' to be moved interstate from Hawaii under certain 
conditions.
    We solicited comments concerning our proposal for 60 days ending 
August 10, 1998. We received five comments by that date. They were from 
representatives of industry and State governments. One commenter 
supported the proposal rule in its entirety. The remaining four 
commenters expressed concerns about portions of the proposed rule. 
Their concerns are discussed below.
    Comment: The proposed rule should require each irradiation facility 
to have in place a set of standard operating procedures before the 
facility is approved by the Animal and Plant Health Inspection Service 
(APHIS).
    Response: In order to be approved by APHIS, each irradiation 
facility must meet certain operating standards and enter into a 
compliance agreement with APHIS, in accordance with Sec. 318.13-
4f(b)(2)(iii). Therefore, no changes to the proposal appear necessary 
in response to this comment.
    Comment: Treatment record requirements should be clarified for 
Hawaiian fruits treated by irradiation on the mainland United States. 
Section 318.13-4f(b)(4)(i)(C) specifies that fruits irradiated in 
Hawaii for subsequent interstate movement are required to be labeled 
with treatment lot numbers, packing and treatment facility 
identification and location, and dates of packing and treatment. It is 
not clear, however, whether Hawaiian fruits treated by irradiation on 
the mainland United States are subject to comparable labeling 
requirements. In order to maintain the identity of a shipment treated 
at any location and to expedite inspections at the port of destination, 
all irradiated Hawaiian fruits, whether treated in Hawaii or on the 
mainland United States, should be subject to these same labeling 
requirements. In addition, all irradiated Hawaiian fruit should be 
accompanied by a document or labeling that provides information on the 
absorbed minimum dose of irradiation.
    Response: In Hawaii, irradiated shipments could, if treated or 
handled improperly, be reinfested with fruit flies. Therefore, we 
established certain labeling requirements for shipments of fruits and 
vegetables irradiated in Hawaii to aid in traceback if those shipments 
were found to contain fruit flies upon arrival on the mainland United 
States. Since the mainland United States does not have established 
populations of fruit flies, and irradiation facilities will be located 
in non-fruit fly-supporting areas of the mainland, the risk of 
reinfestation of shipments irradiated on the mainland United States is, 
at best, negligible. Therefore, we do not believe that it is necessary 
to require similar labeling of shipments irradiated on the mainland 
United States.
    Further, it is standard procedure for irradiation facilities to 
supply the person who commissions the irradiation of fruit or 
vegetables with a document stating the minimum absorbed dose of the 
irradiation treatment. Therefore, we do not feel that it is necessary 
to label boxes with that information.
    Comment: APHIS should require that irradiated fruit be labeled so 
that consumers can easily differentiate irradiated fruit from 
organically grown fruit.
    Response: The labeling of irradiated fruit falls under the 
jurisdiction of the Food and Drug Administration (FDA). Under the FDA's 
regulations at 21 CFR 179.26(c), concerning irradiated foods not in 
package form (e.g., loose fresh fruits and vegetables), an irradiation 
logo and phrase (e.g., ``Treated with radiation'' or ``Treated by 
irradiation'') must be displayed to the purchaser of the food either by 
labeling of the bulk container plainly in view; a counter sign, card, 
or other appropriate device bearing the required information; or 
individual labels on each item of food. In any case, the information 
must be prominently and conspicuously displayed to purchasers. 
Therefore, no changes to the proposal appear necessary in response to 
this comment.
    Comment: APHIS should reconsider its proposal to allow durian and 
green bananas to move interstate to the mainland United States without 
a quarantine treatment. Durian and green bananas both have the 
potential to carry pink hibiscus mealybug (Maconellicoccus hirsutus) 
(PHM). PHM occurs in Hawaii, attacks more than 200 different plants, 
and is considered to be a serious threat to American agriculture. 
Inspection is not sufficient to mitigate the risk of the introduction 
of PHM on durian and green bananas from Hawaii.
    Response: We consider PHM a serious plant pest, but we disagree 
that inspection is not sufficient to mitigate the risk of the 
introduction of PHM on durian and green bananas from Hawaii. PHM is 
easily detectable by inspection because when fruits are infested with 
PHM, they are covered, to at least some degree, with the white waxy 
coating of the mealybug, which is clearly visible on fruits and 
vegetables. We successfully inspect a variety of untreated commodities, 
including avocados, bananas, citrus fruits, peppers, and tomatoes, 
imported into the United States from many different countries for the 
presence of PHM. Therefore, we are making no changes to the proposal in 
response to this comment.
    Comment: This proposal should be postponed until it is determined 
whether Hawaii will build an irradiation facility. If Hawaii does not 
build its own irradiation facility, there will be no irradiated 
Hawaiian fruit to move interstate under the provisions outlined in the 
proposal.
    Response: This rule allows abiu, atemoya, longan, rambutan, and 
sapodilla to be moved interstate from Hawaii if the fruit undergoes 
irradiation treatment at an approved facility in Hawaii or in non-fruit 
fly supporting areas of the mainland United States. Therefore, the 
presence of an irradiation facility in Hawaii is not necessary to 
enable Hawaiian fruits to move interstate under this rule.
    Comment: It is unclear from the proposal whether untreated abiu, 
atemoya, longan, rambutan, and sapodilla moving from Hawaii to the 
mainland United States for irradiation treatment may move into or 
through all States on the mainland or just certain States. Allowable 
ports of entry should be identified in advance and should be consistent 
with those ports considered safe for the entry of other untreated fruit 
fly host shipments intended for cold treatment upon arrival.
    Response: In accordance with Sec. 318.13-4f(b)(1), all untreated 
fruits and vegetables moving from Hawaii to the mainland United States 
for irradiation treatment may not move into or through the States of 
Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, 
Mississippi, Nevada, New Mexico, North Carolina, South Carolina, 
Tennessee, Texas, or Virginia, except that certain movements are 
allowed through Dallas/Fort Worth, TX. Dallas/Fort Worth is authorized 
as an approved stop for air cargo, and as a transloading location for 
shipments that arrive by air and then are loaded into trucks for 
overland movement from Dallas/Fort Worth into an authorized State by 
the shortest route. We are considering allowing untreated fruits and 
vegetables moving from Hawaii to the mainland United States for 
irradiation treatment to move to other locations on the mainland United 
States where cold treatment of fruit flies has been approved. If it 
appears that movement to these additional locations would be 
appropriate, we will propose that change in the Federal Register.
    Comment: Citrus should be added to the list of fruit approved for 
movement interstate from Hawaii with irradiation treatment.

[[Page 65647]]

    Response: We are currently reviewing data to determine the pest 
risk associated with the movement of irradiated citrus from Hawaii to 
the mainland United States. If, after review, it appears that citrus 
may safely move interstate from Hawaii with irradiation treatment, we 
will propose that change in the Federal Register.
    Comment: Because green bananas are not a fruit fly host, pest-proof 
containers or cartons should not be required for the interstate 
movement of green bananas from Hawaii.
    Response: Because research shows that harvested bananas gradually 
become susceptible to fruit fly infestation, we believe that it is 
necessary to require a measure of protection against possible 
infestation. However, we agree that producers should have flexibility 
in the way that they meet this requirement. Therefore, in this final 
rule, Sec. 318.13-4i(d) will read: ``The bananas must be safeguarded 
from fruit fly infestation from the time that they are packaged for 
shipment until they reach the port of arrival on the mainland United 
States.'' This will allow producers to use either pest-proof shipping 
cartons, pest-proof shipping containers (e.g., air or sea containers), 
or other means, such as loading the bananas into a cold storage 
facility or packing the bananas in a carton fully covered by plastic or 
netting, to ensure that harvested bananas are protected from fruit fly 
infestation.
    Comment: Green bananas of the cultivars `Grand Nain' and standard 
`Brazilian' should be allowed to move interstate from Hawaii to the 
mainland United States under the same provisions outlined in the 
proposal for certain other cultivars of green bananas.
    Response: We agree. At the time that we were developing our 
proposal, it was our understanding that ``Grand Nain'' and standard 
``Brazilian'' bananas were either not grown commercially in Hawaii or 
were grown in such limited quantities in Hawaii that there would be no 
interest in moving them interstate to the mainland United States. 
Therefore, we omitted these cultivars of green bananas from our 
proposal. This comment, however, makes it clear that there is interest 
in moving these cultivars of green bananas to the mainland United 
States. Research conducted concurrently with research on the other 
cultivars of green bananas proposed for interstate movement from Hawaii 
indicates that green bananas of the cultivars ``Grand Nain'' and 
standard ``Brazilian'' can be safely moved interstate under the same 
conditions outlined in the proposal for green bananas of the cultivars 
``Williams,'' ``Valery,'' and dwarf ``Brazilian.'' Therefore, in this 
final rule, Sec. 318.13-4i includes green bananas of the cultivars 
``Grand Nain'' and standard ``Brazilian.''
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with 
changes discussed in this document.

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 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.
    We are allowing abiu, atemoya, longan, rambutan, and sapodilla to 
be moved interstate from Hawaii if the fruit undergoes irradiation 
treatment at an approved facility. Treatment may be conducted either in 
Hawaii or in non-fruit fly supporting areas of the mainland United 
States. The fruit will also have to meet certain additional 
requirements, including packaging requirements. We are also allowing 
durian to be moved interstate from Hawaii if the durian is inspected 
and found free of certain plant pests. In addition, we are allowing 
certain varieties of green bananas to move interstate from Hawaii under 
certain conditions intended to ensure the bananas' freedom from plant 
pests, including fruit flies.
    The mainland United States has very limited, if any, quantities of 
abiu, atemoya, durian, longan, rambutan, and sapodilla for sale to 
consumers. Three of these specialty fruits--abiu, durian, and 
rambutan--are not grown commercially on the mainland United States; 
atemoya, longan, and sapodilla are grown commercially on the mainland 
United States but only in relatively small quantities. All mainland 
production of atemoya, longan, and sapodilla occurs in the State of 
Florida. It is estimated that Florida's annual production of atemoya 
amounts to approximately 80,000 pounds; of longan, approximately 2 
million pounds; of sapodilla, approximately 350,000 pounds.
    Unlike the other fruits listed in this document, bananas are 
generally not considered to be specialty fruits. Also unlike the other 
fruits, the mainland United States has abundant quantities of bananas, 
including green bananas, for sale to consumers. However, virtually all 
bananas sold in the United States are imported. Less than 1 percent of 
the U.S. supply of bananas is produced domestically, and only a 
minuscule portion of domestic production occurs on the mainland United 
States, in Florida and California. In 1992, Florida produced 158,662 
pounds of bananas. Production data for California is not available, but 
production in California is estimated to be much less than in Florida, 
given that in 1992 there were only 2 banana-producing farms in 
California and 67 in Florida. Hawaii accounted for the remainder of 
domestic banana production in 1992, with a total of 12,570,831 pounds. 
Based on data for 1992, therefore, Hawaii accounts for nearly all of 
the banana production in the United States.
    It is estimated that there are fewer than 100 farms growing 
tropical specialty fruits in Florida, and virtually all of these farms 
are located in the southern part of the State. Information is not 
available on the gross receipts for each of these farms, but since the 
farms are generally less than 5 acres in size, it is reasonable to 
assume that most are small entities under Small Business Administration 
(SBA) standards. We do not expect the interstate movement of abiu, 
atemoya, durian, longan, rambutan, and sapodilla to affect these fruit 
producers for several reasons. First, as discussed earlier, three of 
the six specialty fruits are not grown commercially on the mainland 
United States. Second, the demand for the remaining three specialty 
fruits that are produced in Florida is strong, particularly among Asian 
Americans on the mainland United States. Florida currently has no 
difficulty selling all of the atemoya, longan, and sapodilla that it 
produces. Third, Hawaiian fruit will likely be marketed primarily in 
western States on the mainland while Florida's fruits are sold 
primarily in eastern States. Therefore, Hawaii's specialty fruits will 
likely be in little direct competition with Florida's specialty fruits.
    As discussed above, in 1992, 67 farms in Florida and 2 farms in 
California produced bananas. Like the specialty fruit growers, most 
banana-producing

[[Page 65648]]

farms in Florida and California are assumed to be small entities under 
SBA standards. However, any interstate movement of green bananas from 
Hawaii should have little or no impact on banana producers on the 
mainland United States. This is due to the relatively small volume of 
bananas that may be moved interstate from Hawaii. Even in the unlikely 
event that Hawaii moved all of its production interstate, Hawaii's 
bananas would still account for less than 1 percent of the mainland 
U.S. supply.
    We expect that fruit growers in Hawaii will benefit from the 
interstate movement of abiu, atemoya, durian, green bananas, longan, 
rambutan, and sapodilla from Hawaii because these growers will have new 
outlets for their products. In 1995, the State of Hawaii produced 
1,250,800 pounds of specialty tropical fruit (of all varieties) with a 
value of $987,100. Three varieties of fruit--carambola, litchi, and 
specialty pineapple--accounted for 74 percent of Hawaii's 1995 
production. The remaining 26 percent, or approximately 325,000 pounds 
of fruit, consisted of all other varieties of fruit grown in Hawaii, 
including the six specialty fruits named in this document. Also, in 
1992, Hawaii produced 12,570,831 pounds of bananas, with a value of 
$5.2 million.
    In 1995, 115 farms in the State of Hawaii grew at least one variety 
of specialty tropical fruit. However, information on which of those 
farms grew one or more of the six specialty fruits named in this 
document is not available. Information is also not available on the 
gross receipts for each of the 115 farms. In all likelihood, most of 
the 115 farms are small entities because data for all 2,019 Hawaiian 
farms whose revenues are derived primarily from the sales of fruit and/
or tree nuts show that 99 percent are small entities under SBA 
standards.
    The production of tropical specialty fruit is growing rapidly in 
Hawaii. The State's 1995 production level represents an increase of 
approximately 126 percent, or 698,100 pounds, over the 1994 level of 
552,700 pounds. Carambola and specialty pineapple accounted for more 
than 80 percent of the increase. The increase in production of tropical 
specialty fruit is expected to continue, as a response to the decline 
in the sugar industry and to the recent availability of prime 
agricultural lands in the State of Hawaii. In 1995, Hawaiian growers 
devoted 415 acres to tropical specialty fruits, 6 percent more acreage 
than in 1994. It is estimated that by the year 2000, Hawaii will be 
producing 2.6 million pounds of tropical specialty fruits annually, 
more than double the 1995 level. If Hawaiian growers move 200,000 
pounds of each of the six specialty fruits named in this document 
interstate annually, using the 1995 average per pound value of all 
tropical specialty fruits produced in Hawaii (on all 115 farms) of 
$.79, the collective annual sales of the fruit would generate $948,000. 
This amounts to $8,243 per farm when divided equally among the 115 
farms growing specialty tropical fruit.
    In 1992, bananas were produced on 700 farms in Hawaii, and a total 
of 1,506 acres were devoted to banana production on those farms. 
Although data for individual farms in Hawaii that produce bananas is 
not available, most are probably small entities by SBA standards 
because, as mentioned earlier, data for all 2,019 Hawaiian farms whose 
revenues are derived primarily from the sales of fruit and/or tree nuts 
show that 99 percent are small entities under SBA standards. However, 
we do not expect this rule to have a significant impact on Hawaiian 
banana producers. Even if those producers were to move interstate the 
equivalent of half of the 1992 banana production (6.3 million pounds), 
the combined revenues from such sales would amount to $2.6 million 
dollars, an average of only $3,681 per farm.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

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

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of 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 
submitted for approval to the Office of Management and Budget (OMB). 
When OMB notifies us of its decision, we will publish a document in the 
Federal Register providing notice of the assigned OMB control number 
or, if approval is denied, providing notice of what action we plan to 
take.

Lists of Subjects in 7 CFR Part 318

    Cotton, Cottonseeds, Fruits, Guam, Hawaii, Incorporation by 
reference, Plant diseases and pests, Puerto Rico, Quarantine, 
Transportation, Vegetables, Virgin Islands.

    Accordingly, we are amending 7 CFR part 318 as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

    1. The authority citation for part 318 continues to read as 
follows:

    Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a, 
and 167; 7 CFR 2.22, 2.80, and 371.2(c).

Sec. 318.13-2  [Amended]

    2. In Sec. 318.13-2, paragraph (b), the list of fruits and 
vegetables is amended by adding, in alphabetical order, ``Durian (Durio 
zibethinus).''
    3. In Sec. 318.13-4f, paragraphs (a) and (b)(4)(iii) are revised to 
read as follows:


Sec. 318.13-4f  Administrative instructions prescribing methods for 
irradiation treatment of certain fruits and vegetables from Hawaii.

    (a) Approved irradiation treatment. Irradiation, carried out in 
accordance with the provisions of this section, is approved as a 
treatment for the following fruits and vegetables: Abiu, atemoya, 
carambola, litchi, longan, papaya, rambutan, and sapodilla.
    (b) * * *
    (4) * * *
    (iii) Litchi and longan from Hawaii may not be moved interstate 
into Florida. All cartons in which litchi or longan are packed must be 
stamped ``Not for importation into or distribution in FL.''
* * * * *
    4. A new Sec. 318.13-4i is added to read as follows:


Sec. 318.13-4i  Administrative instructions; conditions governing the 
movement of green bananas from Hawaii.

    Green bananas (Musa spp.) of the cultivars ``Williams,'' 
``Valery,'' ``Grand Nain,'' and standard and dwarf ``Brazilian'' may be 
moved interstate from Hawaii with a certificate issued in accordance 
with Secs. 318.13-3 and 318.13-4 of this subpart if the bananas meet 
the following conditions:
    (a) The bananas must be picked while green and packed for shipment 
within 24 hours after harvest. If the green bananas will be stored 
overnight during

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that 24-hour period, they must be stored in a facility that prevents 
access by fruit flies;
    (b) No bananas from bunches containing prematurely ripe fingers 
(i.e., individual yellow bananas in a cluster of otherwise green 
bananas) may be harvested or packed for shipment;
    (c) The bananas must be inspected by an inspector and found free of 
plant pests as well as any of the following defects: prematurely ripe 
fingers, fused fingers, or exposed flesh (not including fresh cuts made 
during the packing process); and
    (d) The bananas must be safeguarded from fruit fly infestation from 
the time that they are packaged for shipment until they reach the port 
of arrival on the mainland United States.

    Done in Washington, DC, this 19th day of November 1998.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-31714 Filed 11-27-98; 8:45 am]
BILLING CODE 3410-34-P