[Federal Register Volume 66, Number 168 (Wednesday, August 29, 2001)]
[Proposed Rules]
[Pages 45637-45648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21809]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 66, No. 168 / Wednesday, August 29, 2001 / 
Proposed Rules  

[[Page 45637]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 00-014-1]
RIN 0579-AB18


Phytosanitary Certificates for Imported Fruits and Vegetables

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend our regulations to require that a 
phytosanitary certificate accompany all fruits and vegetables imported 
into the United States, with certain exceptions. This proposal would 
include commercial produce imported into the United States as well as 
fruits and vegetables brought in by travelers. We would exempt fruits 
and vegetables that are dried, cured, frozen, or processed, as well as 
fruits and vegetables that travelers and shoppers bring into the United 
States for personal use through land ports of entry located along the 
Canadian and Mexican borders. The regulations currently do not require 
that phytosanitary certificates accompany produce imported into this 
country, except for certain fruits and vegetables grown in designated 
foreign regions. We believe this change is necessary to help prevent 
foreign plant pests from being introduced into and disseminated within 
the United States. If implemented, this proposal would require changes 
in the practices of importers and travelers who bring produce into the 
United States from other countries.

DATES: We invite you to comment on this docket. We will consider all 
comments that we receive by October 29, 2001.

ADDRESSES: Please send four copies of your comment (an original and 
three copies) to: Docket No. 00-014-1, Regulatory Analysis and 
Development, PPD, APHIS, Suite 3C03, 4700 River Road, Unit 118, 
Riverdale, MD 20737-1238.
Please state that your comment refers to Docket No. 00-014-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue, SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, Senior Import 
Specialist, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-
1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the 
Secretary of Agriculture to prohibit or restrict the importation and 
entry into the United States of any plants and plant products, 
including fruits and vegetables, to prevent the introduction of plant 
pests or noxious weeds into the United States. Under this authority, 
the Animal and Plant Health Inspection Service (APHIS) administers 
regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 through 
319.56-8) (referred to below as the regulations) that prohibit or 
restrict the importation of fruits and vegetables into the United 
States from various regions of the world to prevent the introduction 
and dissemination of plant pests. One form of regulatory restriction 
placed on certain imported fruits and vegetables is that the shipment 
be accompanied by a phytosanitary certificate.
    A phytosanitary certificate is a document issued by a plant 
protection official of a national government to facilitate the 
international movement of a plant or plant product. A phytosanitary 
certificate attests to the phytosanitary status of the plant or plant 
product, including the plant or plant product's origin, as well as 
certification that the plant or plant product has been inspected and/or 
tested, is considered to be free from plant pests of quarantine 
significance, and is otherwise believed to be eligible for importation 
into the country of destination pursuant to the phytosanitary laws and 
regulations of that country. A phytosanitary certificate may include 
additional declarations containing information required by the 
importing country and not routinely noted on the certificate.
    The form, content and use of phytosanitary certificates is governed 
by the International Plant Protection Convention (IPPC). The IPPC is a 
multilateral treaty under the auspices of the Food and Agriculture 
Organization of the United Nations (FAO) and is administered through 
the IPPC Secretariat located in FAO's Plant Protection Service. The 
IPPC is recognized by the World Trade Organization in the Agreement on 
the Application of Sanitary and Phytosanitary Measures as the source 
for international standards for phytosanitary measures affecting trade. 
Over 100 governments, including the United States, are contracting 
parties to the IPPC.
    The use of phytosanitary certificates in conjunction with the 
shipment of agricultural and other plant material is the approach that 
regulatory officials around the world are increasingly relying on to 
help reduce the introduction and spread of plant pests. Phytosanitary 
certificates are recognized as an internationally accepted form of pest 
risk mitigation. Pest risk mitigation at the place of origin is often 
viewed as the most viable means of preventing the introduction of plant 
pests. Our trading partners and the IPPC have also recognized that the 
responsibility of pest risk mitigation and quarantine compliance can be 
shifted to the exporting country.
    Phytosanitary certificates are in wide use in international trade. 
APHIS issues hundreds of thousands of phytosanitary certificates each 
year to facilitate the export of U.S. agricultural products to 
countries that require certificates to accompany such products. We also 
require that a number of agricultural products imported into the United 
States be accompanied by a

[[Page 45638]]

phytosanitary certificate to ensure freedom from certain plant pests. 
Articles that must have a phytosanitary certificate to be imported into 
the United States include citrus from South Africa (Sec. 319.56-2q); 
papayas from Brazil and Costa Rica (Sec. 319.56-2w); cantaloupe, 
honeydew melons, and watermelon from Brazil and Venezuela (Sec. 319.56-
2aa); tomatoes from Spain, France, Morocco and Western Sahara 
(Sec. 319.56-2dd); pears from China (Sec. 319.56-2ee); Hass avocados 
from Mexico (Sec. 319.56-2ff); peppers from Spain (Sec. 319.56-2gg); 
and garlic from a number of countries (Sec. 319.56-2g). Phytosanitary 
certificates must also accompany nursery stock, plants, roots, bulbs, 
seeds, and other plant products imported into the United States under 7 
CFR 319.37 through 319.37-14.
    On August 4, 1995, we published an advance notice of proposed 
rulemaking (ANPR) in the Federal Register (60 FR 39888-39889, Docket 
No. 95-04601). The ANPR sought comments on whether all fruits and 
vegetables imported into the United States should be accompanied by a 
phytosanitary certificate. This included commercial shipments of fruits 
and vegetables as well as produce brought into the United States by 
travelers and shoppers. The majority of comments submitted to APHIS in 
response to the ANPR generally opposed the expanded use of 
phytosanitary certificates. A number of commenters were particularly 
concerned that this requirement would cause significant disruptions and 
delays in commercial shipments of produce from Canada and Mexico. 
Others contended that the specific pest risk was not adequately 
demonstrated to justify the uniform, widespread application of this 
requirement. After considering the comments, we believe it is necessary 
that we move forward with this proposal, subject to certain exceptions, 
for the reasons discussed below.
    In this document we are proposing to amend the regulations to 
require that a phytosanitary certificate accompany all fruits and 
vegetables imported into the United States, with certain exceptions. 
This proposal would apply to all commercial shipments of fruits and 
vegetables imported into the United States, as well as to all fruits 
and vegetables brought in by individual travelers for personal use. We 
would exempt fruits and vegetables that are dried, cured, frozen, or 
processed unless we determine that the drying, curing, freezing, or 
processing to which the fruits or vegetables have been subjected does 
not entirely eliminate pest risk. We would also exempt fruits and 
vegetables that travelers and shoppers bring into the United States for 
personal use through land ports of entry located along the Canadian and 
Mexican borders.
    We define commercial shipment in Sec. 319.56-1 of the regulations 
as a shipment containing fruits and vegetables that an inspector 
identifies as having been produced for sale and distribution in mass 
markets. Identification of a particular shipment as commercial is based 
on a variety of indicators, including, but not limited to, the quantity 
of produce, the type of packaging, identification of a grower or 
packing house on the packaging, and documents consigning the shipment 
to a wholesaler or retailer.
    Requiring fruits and vegetables imported into the United States to 
be accompanied by a phytosanitary certificate would mean that U.S. 
importers would have to get the certificate from an official agency of 
the country where the goods originate. Typically, this would entail an 
inspection by a plant protection official of the foreign country, 
certification of where in the country of origin the fruit or vegetables 
were grown or acquired their phytosanitary status, and a statement that 
the shipment is free of plant pests of quarantine significance. The 
certifying country usually charges a fee for these services. Travelers 
to the United States from foreign countries, unless entering the United 
States through land border ports, also would be required to obtain a 
phytosanitary certificate for any fruits or vegetables they wish to 
bring into the country. This would be true even for travelers bringing 
fruits and vegetables with them in baggage for personal use.
    Because adoption of this proposal would require changes in the 
practices of importers and travelers who bring produce into the United 
States, we would conduct an intensive public relations and education 
campaign to alert importers and travelers to the new requirements. We 
would also delay the effective date of the rule until at least 6 months 
after publication of the final rule.

Inspection Role of APHIS

    Over the past 200 years, several thousand foreign plant and animal 
species have become established in the United States. About one in 
seven has become invasive, leading to economic harm to the United 
States that runs in the billions of dollars annually. Invasive species 
are nonindigenous organisms whose introduction can cause economic and 
environmental harm as well as harm to human health. Problems associated 
with invasive species are national in scope and are becoming more and 
more widespread. Once an invasive species establishes itself, it is 
often difficult and expensive to remove. Recent cases in which invasive 
species have had a significant effect on fruits and vegetables in the 
United States include, among others, citrus canker, plum pox virus, and 
various fruit flies, including the Mediterranean fruit fly (Medfly), 
Mexican fruit fly, and Oriental fruit fly.
    APHIS is one of three primary Federal Inspection Service (FIS) 
agencies responsible for monitoring the movement of cargo and 
passengers into the United States. The two other FIS agencies are the 
U.S. Customs Service (U.S. Customs) in the Department of the Treasury 
and the Immigration and Naturalization Service (INS) in the Department 
of Justice. APHIS is the lead Federal agency responsible for preventing 
the introduction of foreign plant pests and noxious weeds. Plant pests 
or noxious weeds new to or not known to be widely prevalent in the 
United States constitute a potential threat to crops and other plants 
or plant products. It is the job of APHIS to facilitate exports, 
imports, and interstate commerce in agricultural products and other 
commodities in ways that will reduce, to the extent practicable, the 
risk of introducing plant pests or noxious weeds into and within the 
United States.
    At one time, U.S. Customs carried out all primary inspection 
activity involving the importation of food, plant, and animal articles 
into the United States. This included initial screening as well as 
actual inspection of cargo and baggage. APHIS officials were generally 
called in by U.S. Customs only upon discovery of plant and animal 
articles.
    This allocation of duties has changed in recent years. Beginning in 
the 1980's, APHIS assumed greater responsibility in conducting the 
initial screening of cargo and passengers with regard to food, plant, 
and animal products and now has primary responsibility for carrying out 
the actual inspection of cargo, as well as baggage, containing or 
suspected of containing food, plant, and animal articles. We also 
inspect nonagricultural products that may carry plant pests. In FY 
1999, we employed approximately 2,000 inspectors at 126 land, sea, and 
air ports of entry in carrying out these services, which we refer to as 
agricultural quarantine inspection (AQI) activities. By comparison, in 
the early 1980's we employed approximately 1,200 inspectors. 
Expenditures for AQI activities in FY 2000 totaled approximately $182 
million. For the same fiscal year, APHIS received

[[Page 45639]]

approximately $26.8 million in appropriations for AQI activities along 
with $137.5 million in user fees, with remaining revenues coming from 
other sources such as reimbursable overtime and issuance of 
phytosanitary certificates.
    The detection of plant pests in commercial shipments of fruits and 
vegetables is usually predicated on inspecting samples of the shipment. 
APHIS inspectors follow detailed guidelines on selecting a sample 
representative of the entire shipment. Inspection of pedestrians, 
travelers, and passenger vehicles follows a two-stage process, primary 
and secondary inspection. During primary inspection, APHIS inspectors 
screen passengers, their baggage, and vehicles by questioning the 
individuals, reviewing their written declaration, and visually 
observing for possible referral for further examination. We also use x-
ray equipment and detector dogs to aid in this process. Secondary 
inspection involves more detailed questioning of the individual and a 
visual examination of baggage contents, if necessary. Passenger and 
baggage inspection tends to require more APHIS staffing and resources 
in comparison to other AQI activities.
    Historically, APHIS has not required all fruits and vegetables 
imported into the United States to be accompanied by a phytosanitary 
certificate. We have instead relied largely on having well-trained 
personnel to inspect imported produce. Port of entry inspection was, 
and continues to be, the primary safeguard to which all imported 
produce is subject. However, we are increasingly using other 
``offshore'' safeguarding measures for imported fruits and vegetables, 
such as preclearance inspection in the country of origin, treatments, 
and phytosanitary certification. These additional measures have become 
crucial in augmenting inspection efforts in light of worldwide 
developments and trends involving the movement of goods and people.

Effect of Growth in Trade and Travel

    In recent years, opportunities for international commerce and 
travel have reached unprecedented levels. This has resulted in an 
explosive growth in both commercial and noncommercial shipments of 
fruits and vegetables imported into the United States by shippers, 
travelers, and other individuals. For example, from 1995 to 1999, the 
value of U.S. agricultural imports increased from $30.6 billion to 
approximately $38 billion. Fruits and vegetables represent a growing 
share of this import total as refrigerated containerization and other 
technological improvements have made it possible to ship perishable 
commodities longer distances. In 1999, the total value of fruits and 
vegetables imported into the United States was $4.74 billion. Moreover, 
the number of international air passengers traveling to the United 
States has increased over 50 percent during this same period, exceeding 
60.8 million passengers in FY 1999.
    This growth in trade and travel has not only been with our major 
trading partners. The movement towards a more globalized marketplace 
has resulted in increased trade and travel with a number of other 
countries as well. This has presented us with new challenges in better 
understanding the pest complexes and potential pest risks associated 
with goods from these regions.
    In response to this growth in international activity, there has 
been an expansion in the number of U.S. ports of entry. Unfortunately, 
the number of potential pathways for the movement and introduction of 
foreign, invasive plant pests has increased with this boom in global 
trade and travel, placing a tremendous demand on APHIS' inspection 
services.
    Coupled with this unprecedented growth in international commerce 
and travel, APHIS and other FIS agencies have been directed to carry 
out their inspection responsibilities in a more timely manner. 
Recognizing the importance of trade to the national economy, we and our 
FIS partners have responded by adopting new customer service standards 
to move the increasing volume of passengers and cargo through ports of 
entry within specific time periods. For example, current standards call 
for the agencies to clear international airline passengers within 30 
minutes of arrival. Similarly, APHIS has adopted standards to schedule 
inspections of perishable cargo within 3 hours of being notified of its 
arrival.
    APHIS' record in preventing the introduction and establishment of 
harmful agricultural invasive species in recent years is noteworthy. 
Yet, the unprecedented growth in international trade and travel has 
placed the current system, which relies primarily on inspection at the 
port of entry, under stress. Studies, reports, and other data have 
documented how the current AQI system faces a number of challenges in 
keeping pace with the increasing amount of produce entering this 
country through commercial channels and by means of individual 
travelers. For example, a 1993 report by the U.S. Congressional Office 
of Technology Assessment concluded that policies designed to protect 
the United States from the introduction of harmful invasive species 
were not safeguarding our national interests. It further concluded that 
the current system was unable to keep pace with new pest pathways and 
introductions. Similarly, a 1997 report by the U.S. Government 
Accounting Office (GAO) declared that the increasing flow of passengers 
and cargo is far outdistancing APHIS inspection capabilities despite a 
78 percent increase in funding and a 44 percent increase in staffing 
for AQI activities since 1990. According to the GAO, the APHIS workload 
has been directly affected by the increase in international trade and 
travel, both in the volume of cargo and number of international 
passengers traveling to the United States. Furthermore, increases in 
the number of ports of entry, as well as the increased risk at existing 
ports due to expanded volume, have extended APHIS' workload.
    Our own AQI monitoring survey and sampling data covering 
international air passengers arriving in the United States raise 
similar concerns as to the effect this growth in imported fruits, 
vegetables, and other agricultural products is having on our inspection 
efforts. Based on a sample of 149,431 international air passengers 
arriving in the United States in FY 1999, we found that 12,833 (or 8.6 
percent) of these passengers were carrying some type of plant item 
subject to inspection and possible seizure. Further, we found that 
7,451 (5.0 percent) of these passengers carried a plant item that was 
either prohibited or was subject to seizure because the plant item was 
infested or the plant item's origin could not be established. To the 
extent we can generalize, based on this sampling data approximately 5.2 
million of the 60.8 million international air travelers arriving in the 
United States in 1999 would have carried some type of plant item 
subject to inspection and possible seizure, and that approximately 3.0 
million of these passengers carried plant items that would have been 
prohibited or subject to seizure because the item was infested or the 
item's origin could not be established. Although we do not maintain 
data on the types of plant items brought in by air passengers, we know 
from experience that most of the items would be some form of fruits or 
vegetables.
    An earlier study, an APHIS survey on Medfly exclusion efforts, 
covered a 12-month period over 1993 and 1994 and involved the 
inspection of 71,175 passengers out of a total of 14,679,905 passengers 
arriving at 12 airports, both directly and via hub cities from 
countries where Medfly existed. Based

[[Page 45640]]

on the number of quarantine pests detected during the survey, we 
estimated that approximately 11,000 quarantine pests were imported by 
the 14,679,905 passengers. These results probably would have shown even 
higher pest detections, except that the survey did not include 
passengers from Asia and Australia or non-Medfly host material and 
other produce that was not declared.
    With respect to commercial shipments, our inspectors must now 
contend not only with an increased volume of imports, but also with 
changing transportation modes and technologies. These include increased 
use of containerized cargo, and transshipments through one or more 
countries, as well as sharing of vessel container space. These market-
driven trends, while resulting in greater transportation efficiencies, 
can make inspection more problematic, particularly during high-volume 
periods. Container characteristics that account for productivity gains 
for industry present challenges for inspectors, since the cargo is not 
as easily accessible or observable for inspection. Unloading and 
reloading of the contents is costly, and the threat of invasive plant 
pest introductions extends more readily beyond the port of entry if the 
cargo is not unloaded until reaching its final destination. This 
reverses the historical pattern where species generally first appeared 
at ports of entry. Since containers are used and reused many times for 
many different types of cargo, and shipped all over the world, there is 
also the potential that pests from previous shipments can contaminate 
the container itself.
    Requiring the unloading and reloading of cargo en route for 
purposes of inspection can be a time consuming and expensive process, 
while inspecting only the accessible areas of the shipment does not 
necessarily yield a sample representative of the entire cargo. In fact, 
in selecting a sample from the tailgate area of a container or truck, 
we have found that if infested cargo is elsewhere in the container or 
truck, it will likely not be detected 40 to 60 percent of the time. 
Phytosanitary certification at the place of origin would help address 
pest risk concerns while reducing the need for lengthy inspection and 
the consequent delays and disruptions as containers arrive in the 
United States for further shipment to their final destination.
    In an effort to objectively evaluate and improve our ability to 
safeguard U.S. resources from invasive species, APHIS recently arranged 
to have the National Plant Board (NPB) conduct a thorough review of all 
aspects of our safeguarding system. The review group, composed of 
State, industry, academia, and environmental groups, conducted 
extensive research, interviews, site visits, and other interactions 
with APHIS and its stakeholders. In preparing its evaluation, the 
review group focused on four major areas: Pest exclusion, responses to 
pests that breach the exclusion system, use of permits to control the 
movement of pests, and collection and use of international information. 
The review group's 1999 report, ``Safeguarding American Plant 
Resources, A Stakeholder Review of the APHIS-PPQ Safeguarding System'' 
(Safeguarding Report),\1\ contained over 300 recommendations addressing 
the four major areas of focus.
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    \1\ The Safeguarding Report is available upon written request 
from the person listed under FOR FURTHER INFORMATION CONTACT. It is 
also available on the Internet at http://www.aphis.usda.gov/ppq/safeguarding. 
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    The Safeguarding Report identifies a number of opportunities to 
enhance the safeguarding system. In the area of pest exclusion, the 
Safeguarding Report addresses issues relating to preclearance 
inspection in the country of origin, smuggling interdiction, handling 
of commercial cargo, initiatives with regard to the traveling public, 
port of entry inspection, application of technology, risk analysis, 
utilization of user fees, and public education and awareness, to name 
just a few. As of April 2001, a number of recommendations contained in 
the Safeguarding Report have been implemented, including enactment of 
the Plant Protection Act, increased use of digital imaging for pest 
identification, and expanded collection of user fees.
    The Safeguarding Report strongly recommends that we modify our risk 
management strategy, which has relied primarily on port of entry 
inspections as the main line of defense, to also include other 
alternative measures to exclude invasive species. It specifically urges 
us to take a more proactive approach towards the prevention and 
detection of harmful plant pests through greater use of offshore 
mitigation measures, including the use of phytosanitary certificates, 
to supplement inspection at the port of entry.
    The Safeguarding Report also specifically recommends that we 
prohibit the importation of unprocessed food and plant products by the 
traveling public, or, alternatively, require that such items be 
accompanied by a phytosanitary certificate. Although a total 
prohibition on these items would ease enforcement and reduce the amount 
of potential host material moving into the United States, we have opted 
for a less restrictive measure of allowing the continued importation of 
produce by the traveling public, subject to the phytosanitary 
certificate requirement. We believe this proposed course of action 
should significantly curtail the quantity of produce brought in by 
travelers and thereby reduce the risk of pest introduction, yet provide 
those travelers who wish to bring in produce the opportunity to do so 
by procuring a phytosanitary certificate.
    As mentioned earlier, our proposal would provide an exception to 
the phytosanitary certificate requirement for fruits and vegetables 
that are dried, cured, frozen, or processed. We would also exempt 
noncommercial shipments of produce brought into the United States by 
travelers and shoppers through land ports of entry located along our 
borders with Canada and Mexico (see discussion under heading, 
``Travelers and Shoppers Entering the United States Through Land Border 
Ports'').

Why Target Commercial Shipments

    Commercial shipments of fruits and vegetables imported into the 
United States have increased significantly over the last decade as 
shipping technologies and other factors relating to trade have 
facilitated the importation of larger quantities of perishable items to 
this country. This trend is likely to continue as the global 
marketplace becomes more integrated and U.S. consumers come to expect a 
year-round supply of various varieties of fruits and vegetables.
    We have responded to the increased flow of commercial shipments of 
agricultural goods into this country with additional staffing, 
resources, and other measures. However, the growth in imports has 
increased at a faster rate than our ability to inspect using 
traditional means. The large amount of prohibited material passing 
through inspection undeclared or undetected persists. It is apparent 
that the current reliance on inspection at the port of entry is no 
longer sufficient, by itself, to adequately respond to the new dynamics 
governing the commercial movement of imported fruits and vegetables 
into this country. Even with additional staffing and resources, what 
can be done at the inspection site is limited, particularly if 
commercial shipments are to be released in a timely manner.
    Requiring phytosanitary certificates for commercial shipments of 
imported fruits and vegetables would help alleviate the workload of 
APHIS inspectors at the port of entry by providing inspectors with 
verifiable information as to the place of origin

[[Page 45641]]

where the goods acquired their true phytosanitary status, i.e., where 
the goods were exposed to possible infestation or contamination by 
pests. Normally, this will be the place where the commodity was grown. 
The phytosanitary certificate would also provide the added security 
that the shipment has already been inspected by a plant protection 
official of a national government in the exporting country.
    The required use of phytosanitary certificates would also help 
mitigate inspection concerns relating to container shipments. 
Containers present challenges for inspectors, since the cargo is often 
not easily accessible or observable for inspection. Unloading and 
reloading of the contents for purposes of inspection can be a time 
consuming and expensive process, while inspecting only the accessible 
areas of the shipment does not necessarily yield a sample 
representative of the entire cargo. Phytosanitary certification based 
on inspection at the place of origin would help address some of these 
concerns involving the use of containers. It would lessen the potential 
need for lengthy inspection and the consequent delays and disruptions 
upon arrival in the United States.
    Requiring phytosanitary certificates for commercial shipments of 
imported fruits and vegetables would also help overcome inspection 
challenges by accurately identifying the origin of the shipment's 
contents. This is particularly important when the shipment has moved 
through more than one country prior to arrival in the United States. It 
is becoming more common for perishable agricultural products to be 
shipped from the country where produced to intermediate layover points 
in other countries (for further handling and storage) before shipment 
to the country of final destination. While in storage, these goods may 
be split up, combined with other consignments from other regions, or be 
repackaged. The laws of the country where the goods are being 
temporarily stored may allow for commingled shipments to be labeled as 
originating there so long as a portion of the shipment includes goods 
produced in that country. Such practices may obscure the true origin of 
certain contents in the shipment. For example, it may not be readily 
apparent that a shipment exported from a low-risk pest region includes 
articles that were produced in a high-risk pest region. Phytosanitary 
certificates would help alleviate identification issues relating to the 
goods' origin, since even goods that are in a commingled shipment or 
repackaged must still be certified as to their place of origin.
    Requiring phytosanitary certificates for all commercial shipments 
of imported fruits and vegetables would be an important step in 
mitigating the pest risk associated with the increased volume of 
commercial produce coming into this country. It would help alleviate 
inspection concerns with respect to cargo shipped in containers as well 
as identification issues involving the goods' place of origin. 
Ultimately, phytosanitary certification should expedite the clearance 
process at the port of entry for commercial shippers, while providing 
needed additional security against the introduction and dissemination 
of invasive plant pests into the United States.

Why Target Travelers

    Imported produce brought into the United States by travelers poses 
a risk because:
     The origin of the produce is often difficult to determine;
     There is a greater chance that the produce is grown in 
backyard gardens with little or no pest control. Historically, 
decisions to allow importation of produce have been based on an 
evaluation of the pest risk associated with commercial production, not 
backyard production;
     Travelers bring noncommercial varieties with unknown 
susceptibility to pests; and
     The fruits are often ripe or overripe, and, therefore 
particularly susceptible to infestations.
    The required use of phytosanitary certificates would significantly 
reduce the total amount of fruits and vegetables brought in by 
travelers arriving by plane or other means of transportation, resulting 
in far less infested produce being imported. For travelers who do bring 
in produce accompanied by a phytosanitary certificate, the inspection 
process at the port of entry would be more efficient as inspection 
officers could better determine the origin of the produce. There should 
also be more consistency in identifying products subject to 
confiscation. Currently, it is often difficult for inspectors to 
determine the origin of produce when interviewing passengers. This can 
result in items being seized that should not be, while other items are 
released that should be seized. If the number of passengers arriving 
with produce is significantly reduced, then inspection officers 
currently required on the baggage floor to facilitate entry of products 
would be free to conduct more cargo sampling and other detection and 
compliance activities.
    We have considered the potential difficulty, particularly in the 
initial years, of travelers procuring a phytosanitary certificate. For 
example, phytosanitary certificates are required to include detailed 
information about where the fruit or vegetable was grown and, in 
certain cases, where or how it was treated. This kind of information 
may not be readily available to travelers or shoppers who purchase the 
products at a market in a foreign country. We have also taken into 
account that, even if readily available, the cost of obtaining a 
certificate may outweigh the benefits for those carrying small amounts 
of produce with them for personal use. However, the inconveniences and 
hardships to certain travelers would be more than offset by the fact 
that this requirement would provide a considerable measure of added 
protection against the introduction of foreign plant pests by 
travelers.

Travelers and Shoppers Entering the United States Through Land Border 
Ports

    We are proposing to exempt noncommercial shipments of produce 
brought in by travelers and shoppers entering the United States through 
land ports along the Mexican and Canadian borders. We believe that the 
existing system of inspection provides sufficient protection against 
the introduction of plant pests in produce carried in by individuals 
through these ports for personal use, and not for sale.
    Vehicular and pedestrian traffic in the millions crosses our land 
borders annually. In FY 2000, approximately 90.9 million vehicles and 
51.0 million pedestrians entered the United States through our ports of 
entry along our southern border with Mexico. We do not maintain similar 
statistics for vehicles and pedestrians entering the United States from 
Canada. The high volume of travelers and shoppers crossing our land 
borders is not a new phenomenon, but has existed for decades now, due 
in part to the cultural and economic ties that have developed along our 
borders with Mexico and Canada. It has been a long-standing practice 
for a number of shoppers and travelers to bring agricultural goods with 
them when crossing the border. For example, based on a sample of 52,982 
vehicles and 31,553 pedestrians entering the United States from Mexico 
in FY 2000, we found that approximately 7 percent of the vehicles 
sampled and 8 percent of the pedestrians sampled carried some type of 
plant article. (This data does not include passengers on buses.) 
Applying these percentages to the total number of vehicles and 
pedestrians entering the

[[Page 45642]]

United States from Mexico, we estimate that approximately 6.5 million 
vehicles and 4.1 million pedestrians would have carried some type of 
plant article. Although we do not maintain data on the types of plant 
articles brought in by vehicles and pedestrians, we know from 
experience that most of the plant articles would be fruits or 
vegetables.
    We have found that the pest risk factors discussed earlier with 
regard to imported produce brought into the United States by 
international travelers from around the world are not as applicable in 
the case of shoppers and travelers bringing in produce through our land 
border ports of entry. Fruits and vegetables that shoppers and 
travelers carry in through our land ports along the Mexican and 
Canadian borders tend to be purchased and consumed in the vicinity of 
the border area. For instance, it is common for U.S. residents living 
along the Mexican border to purchase produce in Mexico for local 
consumption in the United States. These groceries are referred to 
locally as ``mandado.'' The purchase of mandado represents a long-
standing tradition and is symbolic of the culturally-blended society 
and economy that exists along the United States-Mexican border. A 
somewhat similar situation occurs along the Canadian border, although 
there is less traffic of this sort from Canada. The purchase and 
consumption of produce within the general area of the border is not as 
great a concern since land areas on either side of the border generally 
share common plant pests, so the risk of introducing new or not widely 
prevalent plant pests is minimal.
    Based on our many years' experience in inspecting vehicle and 
pedestrian traffic along the Mexican and Canadian borders, we and our 
FIS partners have become familiar with the long-standing practices of 
shoppers and travelers bringing in agricultural items. We are also 
quite knowledgeable in the types and varieties of fruits and vegetables 
grown in Mexico and Canada. When inspecting plant articles at land 
ports, we can act with a greater degree of certainty in determining the 
general origin of the article without the need of certification, such 
as whether the article was produced near the border area, or in a 
location in the interior of Mexico or Canada, or somewhere outside 
Mexico or Canada. We also have greater flexibility in not being subject 
to the strict time standards that govern inspection of commercial cargo 
and airport baggage. Therefore, we believe that the existing system of 
inspection at our land ports provides sufficient protection against the 
introduction of plant pests in produce carried in by individuals for 
personal use without the need of requiring phytosanitary certification.
    We are proposing that the exemption from phytosanitary 
certification would apply only to shoppers and travelers entering the 
United States through our land ports of entry, and would not be 
extended to travelers arriving in the United States by plane or boat 
from Mexico or Canada. There are several reasons for doing this. First, 
there is a greater potential that these air or boat passengers may have 
also traveled in areas outside of Mexico or Canada. There is also a 
greater potential that produce brought into the United States by these 
passengers may be carried to more distant points from the border that 
do not necessarily share some of the plant pests common in our land 
areas along the Mexican or Canadian borders.
    We would also not extend this exemption from phytosanitary 
certification to commercial shipments arriving from Mexico and Canada. 
We believe that phytosanitary certificates are necessary in the case of 
commercial shipments from Mexico and Canada in order to mitigate the 
plant pest risks associated with container shipments and to address the 
practice of commercial shipments moving through more than one country 
prior to arrival in the United States.

Certification as a Risk Mitigation Tool

    Given the likelihood of continued growth in commercial and 
noncommercial shipments of produce and the imperative to clear 
commercial cargo and international travelers in a timely, efficient 
manner, it is difficult to foresee how the current system, which relies 
primarily on port of entry inspection, can keep pace with the increased 
flow of imported produce without greater use of offshore mitigation 
measures to augment existing detection efforts.
    The required use of phytosanitary certificates should greatly 
curtail the quantity of high-risk imports by travelers. For commercial 
shipments, the phytosanitary certificate would document the origin of 
each shipment and ensure inspection in the country of origin by a 
member of the foreign plant protection organization, helping to ensure 
shipment of clean commodities.
    In our view, greater use and reliance on phytosanitary 
certificates, by both the United States and other countries, is the 
wave of the future. While port of entry inspection must continue to 
play an important role, the historic view that this activity can 
function as the focal point for exclusion must be augmented by greater 
emphasis on other viable approaches, including detection, compliance, 
and mitigation of pest risks in the country of origin. A risk 
management strategy that emphasizes the increased use of phytosanitary 
certificates and other offshore mitigation measures, along with 
continued inspection activities at the port of entry should, in the 
long run, allow for expedited entry of commercial cargo and passengers 
while providing the necessary level of quarantine security.

Proposed Changes to Part 319

    In Sec. 319.56-1, we propose to amend the definition of commercial 
shipment and add definitions for the terms noncommercial shipment and 
phytosanitary certificate.
    Commercial shipment is defined in the regulations as ``a shipment 
containing fruits and vegetables that an inspector identifies as having 
been produced for sale and distribution in mass markets. Such 
identification will be based on a variety of indicators, including, but 
not limited to: quantity of produce, type of packaging, identification 
of grower or packing house on the packaging, and documents consigning 
the shipment to a wholesaler or retailer.'' We would amend the 
definition of commercial shipment by revising the phrase ``fruits and 
vegetables'' in the first sentence to read ``fruits or vegetables.'' We 
would make this change to be consistent with APHIS inspection policy. 
We consider a commercial shipment, for purposes of inspection and 
treatment, to consist of a particular type of fruit or vegetable as 
opposed to a commingled lot of fruits and vegetables. So if two types 
of produce enter the United States at the same time as part of a single 
consignment, we would consider that to be two shipments. We identify 
commercial shipments on a commodity basis in most circumstances since 
our regulations for inspection and treatment are based on the pest 
risks associated with specific fruits or vegetables. In the first 
sentence, we would also replace the word ``imported'' with the word 
``produced.'' While an article may have been ``produced'' for sale in 
the country of origin, it loses its commercial character if brought to 
this country by an individual for personal use. Inspectors identify a 
shipment to be commercial based on whether it is subject to sale and 
distribution at the time it is ``imported'' into the United States. 
Also, we would delete the words ``mass markets'' as used in the phrase 
``for sale and distribution in mass markets.'' The key factor in 
identifying a shipment as commercial is whether it

[[Page 45643]]

is produced for sale and distribution, and not whether distribution 
occurs in a mass market.
    We would define noncommercial shipment as ``a shipment containing 
fruits or vegetables that an inspector identifies as having been 
imported for personal use and not for sale.''
    We would define phytosanitary certificate as ``a document, 
including electronic versions, that is related to a fruit or vegetable 
shipment and that: (1) Is patterned after the model certificate of the 
International Plant Protection Convention (IPPC), a multilateral 
convention on plant protection under the authority of the Food and 
Agriculture Organization of the United Nations; (2) is issued by an 
official of a foreign national plant protection organization; (3) is 
addressed to the plant protection service of the United States (Animal 
and Plant Health Inspection Service); (4) describes the shipment; (5) 
certifies the place of origin for all contents of the shipment; (6) 
certifies that the shipment has been inspected and/or tested according 
to appropriate official procedures and is considered to be free from 
quarantine pests of the United States; and (7) contains any additional 
declarations required under this subpart.''
    We propose to amend the regulations at Sec. 319.56-2(a) by 
providing that a phytosanitary certificate must accompany all 
commercial and noncommercial shipments of fruits and vegetables 
imported into the United States, except for fruits and vegetables that 
are dried, cured, processed, or frozen, and noncommercial shipments of 
fruits and vegetables brought into the United States through land ports 
of entry located along U.S. borders with Canada and Mexico.
    We propose to amend paragraphs (b) through (d) of Sec. 319.56-2, 
which cover the entry of fruits and vegetables under particular 
situations or from particular countries, to reflect the appropriate 
application of the new phytosanitary certificate requirement. Under 
Sec. 319.56-2(b), dried, cured, and processed fruits and vegetables 
would not require a phytosanitary certificate unless APHIS determines 
that the drying, curing, or processing to which the fruits or 
vegetables have been subjected has not eliminated the pest risk. We 
would amend Secs. 319.56-2(c) and (d) to reflect the applicability of 
the phytosanitary certificate requirement to fruits and vegetables from 
Canada and to fruits and vegetables imported into the U.S. Virgin 
Islands from the British Virgin Islands. We would also make a technical 
correction to Sec. 319.37-2(c), for purposes of syntax and clarity, by 
substituting the words ``may not be imported'' in place of ``are 
prohibited importation.'' We would also move the phrase ``in accordance 
with Sec. 319.37-2 of this part'' to appear earlier in the sentence.
    Section 319.56-6 covers inspection and other requirements at the 
port of first arrival. We propose to amend paragraph (c) of this 
section to cite APHIS' authority to refuse entry of imported fruits and 
vegetables if not accompanied by a phytosanitary certificate, when 
required.
    We would leave unchanged those sections of the regulations that 
already require a phytosanitary certificate to accompany specified 
fruits and vegetables from particular regions. These sections require 
specific declarations to appear on the phytosanitary certificates and 
would remain in effect.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
This rule has been determined to be significant for the purposes of 
Executive Order 12866 and, therefore, has been reviewed by the Office 
of Management and Budget.
    Below is an economic analysis for the proposed rule to require that 
all fruits and vegetables imported into the United States be 
accompanied by a phytosanitary certificate, with certain exceptions. 
The economic analysis provides a cost-benefit analysis as required by 
Executive Order 12866 and an analysis of the potential economic effects 
on small entities as required by the Regulatory Flexibility Act.
    We do not have enough data for a comprehensive analysis of the 
economic effects of this proposed rule on small entities. Therefore, in 
accordance with 5 U.S.C. 603, we have performed an initial regulatory 
flexibility analysis for this proposed rule. We are inviting comments 
about this proposed rule as it relates to small entities. In 
particular, we are interested in determining the number and kind of 
small entities that may incur benefits or costs from implementation of 
this proposed rule, including the cost of procuring a phytosanitary 
certificate from other countries, any other administrative and 
logistical costs that might be incurred in procuring these 
certificates, and any costs associated with inspection.
    Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary 
of Agriculture is authorized to prohibit or restrict the importation 
and entry into the United States of any plant and plant products, 
including fruits and vegetables, to prevent the introduction of plant 
pests or noxious weeds into the United States.
    This proposed rule would require that all fruits and vegetables 
imported into the United States be accompanied by a phytosanitary 
certificate, with certain exceptions. We would exempt fruits and 
vegetables that are dried, cured, frozen, or processed, as well as 
noncommercial shipments of fruits and vegetables brought into the 
United States through land ports of entry located along the Canadian 
and Mexican borders. The United States does not currently require a 
phytosanitary certificate for the importation of fruits and vegetables, 
except in specific instances as detailed in the regulations.
    This proposed rule has been prompted by the need for offshore pest 
mitigation measures to augment port of entry inspection efforts in 
response to the explosive growth in the number of and variety of 
commercial fruit and vegetable imports coming into this country as well 
as the increased number of travelers entering the United States from 
foreign countries. The primary alternative to this proposed rule would 
be to continue increasing our staffing and resources at port of entry 
inspection facilities. We could adjust our user fees to help offset any 
additional costs associated with this effort. APHIS has tried to 
address the plant pest threat over the past decade through increased 
staffing at the inspection site. We have also implemented new programs 
and technologies such as the deployment of detector dogs and the use of 
x-ray equipment at certain ports. Despite these efforts, however, the 
large amount of prohibited material passing through port of entry 
inspection undeclared and undetected persists.
    We have also considered the potential benefits of including 
additional questions on the U.S. Customs form that travelers complete 
prior to entry into the United States relating to any plant articles 
they are carrying with them. We have explored this possibility with 
U.S. Customs since it is their form and is designed primarily to meet 
the needs of U.S. Customs. However, even if travelers could provide 
additional information, such as where the article was purchased, in 
many cases it would not provide us with definitive data as to where and 
under what conditions the plant article was produced.
    It is apparent that even with additional staffing and other 
measures, what can be done at the inspection site is limited, 
particularly if cargo and passengers are to be inspected and released 
in a timely manner. As noted in the 1999 report, ``Safeguarding 
American Plant Resources, A

[[Page 45644]]

Stakeholder Review of the APHIS-PPQ Safeguarding System'' (Safeguarding 
Report),\2\ we must more vigorously pursue offshore mitigation measures 
that augment our port of entry inspection efforts.
---------------------------------------------------------------------------

    \2\ The Safeguarding Report is available upon written request 
from the person listed under FOR FURTHER INFORMATION CONTACT. It is 
also available on the Internet at http://www.aphis.usda.gov/ppq/safeguarding.
---------------------------------------------------------------------------

    Offshore mitigation has several important advantages. By conducting 
inspections at the point of origin, pests can be intercepted before 
they enter the country instead of at U.S. ports. Additionally, 
inspection at the point of origin is often more efficient and effective 
as it allows for inspecting cargo before it is packed for shipment 
rather than having to unpack and repack the shipment for inspection 
upon arrival at the country of destination. We already require 
phytosanitary certificates for selected fruits and vegetables exported 
to the United States from other countries. We are also working with 
countries seeking to establish preclearance programs for the inspection 
of a number of commodities. Right now we have APHIS personnel stationed 
abroad managing permanent preclearance programs for fruits, vegetables, 
and flower bulbs destined for the United States from Mexico, Chile, and 
The Netherlands as well as air passenger preclearance programs in 
Aruba, The Bahamas, Bermuda, and Canada.
    We considered requiring phytosanitary certificates only for 
commercial shipments of fruits or vegetables. We did not propose this 
alternative because the risks posed by imported fruits and vegetables 
are not limited to commercial shipments. We also considered prohibiting 
the importation of unprocessed food and plant products by the traveling 
public as recommended in the Safeguarding Report. A total prohibition 
on these items would ease enforcement and reduce the entry of potential 
host material carrying harmful pests. However, we have opted for a less 
restrictive measure of allowing the continued importation of produce by 
the traveling public, with a phytosanitary certificate except as 
explained below for produce from Mexico and Canada. We recognize that 
it may be difficult for travelers to obtain a phytosanitary certificate 
in a number of countries, particularly during the initial years this 
rule is in effect if it is adopted. However, we expect that, if this 
proposal is implemented, a number of countries will develop or improve 
their facilities and services for issuing certificates to travelers and 
shoppers as is done for commercial importers.
    We are exempting from the phytosanitary certificate requirement 
fruits and vegetables brought into the United States by travelers and 
shoppers for personal use through land ports of entry along the 
Canadian and Mexican borders. We believe the continued use of screening 
and inspection for noncommercial shipments crossing the Canadian and 
Mexican borders provides a sufficient safeguard.
    The growth in the number and variety of commercial shipments as 
well as the increased number of travelers to the United States has 
significantly increased the risk of pest introduction. Establishment of 
foreign plant pests can have a significant economic effect on the 
United States. Not only do these pests have the potential to cause 
economic harm to agricultural producers, but subsequent APHIS 
monitoring and eradication programs can be quite costly.
    APHIS programs to control Mediterranean fruit fly (Medfly) and 
Mexican fruit fly serve as examples in illustrating the potential 
costs. These particular pests can enter the United States through both 
commercial cargo shipments and passenger baggage. APHIS studies of the 
Medfly and Mexican fruit fly have shown the potential for significant 
economic harm should these pests become established in the United 
States. A recent APHIS study \3\ of the ongoing Texas Valley Mexican 
Fruit Fly Protocol estimates total costs of between $888 million and 
$928 million annually if the Mexican fruit fly becomes established 
throughout its possible range in the United States. These costs take 
into account additional pest control and treatment for fruit production 
in California and Florida as well as for projected crop losses. There 
would also be trade losses due to export prohibitions, as well as 
quarantine treatment costs, as other countries react to protect 
themselves from the pest risk associated with the affected produce. The 
Medfly program in Florida \4\ provides a similar example. The total 
economic effect of Medfly establishment in Florida has been estimated 
at $308 million annually. This includes costs for pest control and 
treatment of fruit, as well as projected crop losses.
---------------------------------------------------------------------------

    \3\ APHIS, Policy & Program Development, Policy Analysis and 
Development, ``Economic Analysis of Options for Eradicating Mexican 
fruit fly (Anastrepha ludens) from the Lower Rio Grande Valley of 
Texas,'' March, 2000.
    \4\ APHIS, Policy & Program Development, Policy Analysis and 
Development, ``Economic Assessment of Options for the Medfly 
Cooperative Program in Florida,'' February, 1998.
---------------------------------------------------------------------------

    Both of these existing programs illustrate the potential costs of 
new foreign plant pests entering and becoming established in this 
country and represent the types of programs and costs that we hope to 
be able to avoid in the future, in part through this rule.
    This proposed rule would primarily affect two major groups. The 
first group would be U.S. firms that import fruits and vegetables into 
the United States. Import brokers who work with these firms would also 
be affected by the new certification requirements. The second group 
would be travelers who carry fruits and vegetables into the United 
States from foreign countries for their own personal use. Based on our 
initial analysis, it appears that the economic effect of this proposed 
rule for both U.S. importers and travelers is likely to be small.
    In 1999, the total value of fruits and vegetables imported into the 
United States was $4.74 billion. Most of these imports came from Mexico 
(40 percent), with the rest from Chile (10.5 percent), Costa Rica (10.1 
percent), Canada (8.5 percent) and Ecuador (7 percent). The regulations 
currently require phytosanitary certification only in specific 
instances. In 1999, shipments requiring certification accounted for 
$547.6 million or 11.6 percent of total fruit and vegetable imports. 
The extent to which phytosanitary certification is required varies from 
country to country. Of the top five sources of fruits and vegetables 
listed above, 95.5 percent of Chile's exports to the United States 
(based on value) require a phytosanitary certificate, whereas only 1 
percent of Mexico's exports to the United States require certification.

U.S. Importers

    Based on the number of import permits APHIS issues, we expect that 
between 800 and 1000 firms would be affected by this proposed rule if 
it is adopted. Requiring a phytosanitary certificate for all commercial 
shipments of fruits and vegetables imported into the United States 
would mean that U.S. importers would have to get the certificate from 
the government of the country where the goods originated. Typically, 
this would involve an inspection by the foreign government, 
certification of where in the country of origin the fruits or 
vegetables were grown, and a statement that the shipment or shipments 
are free from plant pests of quarantine significance.
    Our proposal would represent a significant administrative change 
for many importers, especially those

[[Page 45645]]

importing from countries from which we do not typically require 
phytosanitary certificates, such as Canada. The additional paperwork 
and inspection burden may result in additional costs to importers who 
find it necessary to restructure their operations to meet the new 
requirements. We do not expect these costs to be significant.
    Foreign national plant protection organizations that issue 
phytosanitary certificates usually charge a fee for their services. The 
fee is typically quite small in comparison to the value of the 
commercial shipment. The value of commercial shipments of fruits and 
vegetables can vary widely, from a few thousand dollars to over 
$100,000. The size and value of a shipment will depend on the type of 
goods, the origin of the goods, the transportation method used, and 
other factors. The majority of commercial fruit and vegetable shipments 
appear to range between $5,000 and $20,000 in value, based on data from 
APHIS and the Census Bureau of the U.S. Department of Commerce. In 
contrast, the fee that is charged for a phytosanitary certificate and 
inspection is comparatively small. The actual fee varies from country 
to country and is based solely on the criteria that the issuing country 
deems appropriate. As points of reference for most shipments, Canada 
charges C$17 Canadian dollars ($10.75US) and Mexico charges 244 Mexican 
new pesos ($24.50US). The structure of the costs upon which the fee is 
based also varies from country to country. Spain does not charge a fee 
if a phytosanitary certificate is required by the importing country. If 
a certificate is not required, Spain charges 0.0525 percent of the 
customs value of the shipment, with a minimum of 795 pesetas ($4.57US). 
The Netherlands charges for the time required to conduct the 
inspection. This includes an initial fee of 48.50 Dutch guilders plus 
31.50 Dutch guilders for each 15 minutes. A typical inspection of 15 to 
30 minutes would cost between 80 to 111.50 Dutch guilders ($34.72 to 
$48.39US). APHIS charges $50 for commercial shipments valued at over 
$1,250.
    The cost of obtaining a certificate in comparison to the average 
value of a commercial fruit and vegetable shipment can be illustrated 
in the following example involving Canada. The Canadian government 
charges C$17 for shipments valued above C$1,600, and C$7 for lesser 
valued shipments. For the higher valued shipments, this would mean a 
maximum cost of approximately 1 percent of the value of the shipment. 
For smaller shipments, the certification cost as a percentage of the 
shipment's value might be higher, but not significantly. For a shipment 
valued at C$500, the certification cost would be 1.4 percent of the 
value of the shipment. Since commercial shipments are usually valued 
much higher than C$1,600, the fee charged for obtaining the certificate 
would likely be a minor expense. Consequently, based on our initial 
analysis, this proposed rule would only marginally increase the costs 
to importers.
    A detailed analysis of the cumulative costs of phytosanitary 
certification in relation to the number of shipments or the value of a 
shipment is not possible at this time because certain critical 
information is unavailable, and is to our knowledge not collected. For 
example, we do not collect data that show the quantitative relationship 
between the number of shipments entering the United States and the 
number of phytosanitary certificates issued for those shipments. There 
may be one or more phytosanitary certificates attached to a single 
shipment, or conversely, one phytosanitary certificate may apply to 
several shipments. Without data showing the relationship between 
shipments and certificates, it becomes difficult to speak in a formal 
way about the potential added costs due to phytosanitary certification. 
As such, we are inviting comments that address this issue. However, we 
have made some estimation of the additional costs of this proposal 
based on what information we have coupled with our experience in 
inspecting shipments of fruit and vegetables at land, air, and sea 
ports of entry. We have strived to be conservative in our estimates so 
as to not underestimate the cumulative cost.
    Our records show that 662,549 commercial shipments of fruits and 
vegetables entered the United States in 2000. In this specific context, 
we consider a commercial shipment to consist of a particular type of 
fruit or vegetable. So, if two types of produce enter the United States 
at the same time as part of a single consignment, we would consider 
that to be two shipments. Out of the total of 662,549 commercial 
shipments in 2000, 77,682 shipments were received at U.S. maritime 
ports of entry; 99,316 shipments were received at ports of entry 
located at U.S. airports; and 485,551 shipments were received at U.S. 
land ports of entry located along the Canadian and Mexican borders. 
This information covers FY 2000, with the exception of shipments 
entering U.S. land ports from Canada, which is based on data covering 
calendar year 2000. Although we do not maintain data on the number of 
phytosanitary certificates that accompanied these commercial shipments, 
for purposes of this analysis, we are estimating a 1 to 1 ratio (i.e., 
one phytosanitary certificate per shipment) for commercial shipments 
that arrived at our maritime ports, and a 1 to 3 ratio (i.e., one 
phytosanitary certificate per 3 shipments) in the case of commercial 
shipments that arrived at our air and land ports. We are estimating a 1 
to 1 ratio in the case of maritime cargo because such shipments almost 
always arrive as one intact load of a particular commodity. We are 
estimating a 1 to 3 ratio for commercial shipments arriving at our air 
and land ports since it is quite common for a single consignment of 
produce arriving by land or air to consist of commingled lots of more 
than one type of produce, resulting in multiple shipments per 
consignment. In these situations, one phytosanitary certificate could 
be issued to cover all of the shipments in the consignment. We are 
estimating here that one phytosanitary certificate would typically 
cover 3 commercial shipments that arrive at our air or land ports. We 
invite you to comment on these estimated ratios.
    Based on an 1 to 1 ratio for maritime shipments, we estimate that 
total maritime shipments of 77,682 in 2000 would have been accompanied 
by an estimated 77,682 phytosanitary certificates. Using the ratio of 1 
to 3 for air and land shipments, the 99,316 shipments arriving by air 
would have been accompanied by a total of 33,105 phytosanitary 
certificates, while the 485,551 shipments coming through our land ports 
would have been accompanied by a total of 161,850 phytosanitary 
certificates. So we estimate that total fruit and vegetable shipments 
of 662,549 in 2000 would have required the issuance of 272,637 
certificates if this proposed rule were implemented. If we use the cost 
of a phytosanitary certificate issued by APHIS (i.e., $50), the total 
cost of requiring phytosanitary certificates for commercial shipments 
of fruits and vegetables would be approximately $13.6 million (272,637 
certificates x $50). Note that this total dollar amount includes the 
cost of certificates that we already require for certain fruits and 
vegetables under our regulations. Also, the $50 figure charged by APHIS 
is generally higher than the fees charged by other countries as 
discussed above.
    In addition to the actual fee for obtaining a phytosanitary 
certificate, there could be costs associated with the additional time 
and disruption in having the shipment or shipments inspected and 
certified in the exporting country. Delays in having the shipments

[[Page 45646]]

inspected could result in further costs. We collect no data on these 
potential costs and are therefore inviting your comments that address 
this issue.
    The other potential area where costs could be incurred is through 
the added paperwork and administrative burdens associated with finding 
the appropriate officials in foreign countries to issue the 
certificates and learning what the appropriate procedures are for each 
country. There are two main reasons why we do not expect that this will 
be a major issue for most importing firms.
    First, it may be difficult to find the appropriate officials in 
some countries to conduct the inspections and issue the phytosanitary 
certificates. However, we are proposing that any final rule would not 
go into effect until 6 months after publication in the Federal 
Register. This advance notice should give affected parties sufficient 
time to contact the plant protection agencies in the countries that 
they are importing from and learn the procedures for procuring a 
certificate. Furthermore, phytosanitary certificates are governed under 
the International Plant Protection Convention (IPPC), a multilateral 
treaty under the auspices of the United Nations Food and Agriculture 
Secretariat. This treaty has over 100 countries as signatories. 
Signatories to the IPPC agree that pest risk mitigation is the 
responsibility of the exporting country, and that they are willing and 
able to issue phytosanitary certificates. We expect any logistical or 
administrative difficulties associated with discovering the 
requirements for obtaining a phytosanitary certificate in specific 
countries to be short term in most cases, and should be resolved within 
the 6 month time window before the final rule goes into effect.
    The second issue is that many firms use import brokers in order to 
facilitate the movement of their shipments into the United States. The 
broker's primary role is to make arrangements and get appropriate 
documentation for the import and export of goods. Firms that hire 
brokers will likely be able to avoid the added burden of phytosanitary 
certification since this task would fall within the purview of the 
broker. The certification burden as it applies to brokers is less an 
issue, since this task would fall within the broker's existing role of 
obtaining necessary documentation in order to expedite the movement of 
goods on behalf of clients.
    Essentially, these new administrative burdens are not expected to 
have a major impact because there should be sufficient time to adapt to 
the requirements before they go into effect. In addition, many import 
firms will continue to rely on a broker to handle these issues for 
them.

Small Entities

    We do not have enough information to fully evaluate the potential 
effect of this proposed rule on small entities. As such, we are 
inviting comments addressing this issue. In particular, we are 
interested in determining the number and kinds of small entities that 
may incur benefits or costs from implementation of this proposed rule, 
and if there are any special issues relating to the business practices 
of these small entities that would make them particularly different 
from larger firms in their ability to comply with this proposed rule. 
However, we have made some initial conclusions.
    Relevant small entities would include small U.S. wholesalers who 
import fruits and vegetables from foreign countries. The Small Business 
Administration defines a small wholesaler of fresh fruits and 
vegetables as one having less than 100 employees. While smaller firms 
are likely to import smaller quantities than larger firms, the cost of 
a phytosanitary certificate likely represents less than 1 percent of 
the value of a commercially viable shipment, and as such this issue 
should not constitute a major impact.
    Smaller firms would have to deal with the same new administrative 
burdens as other larger firms. If these smaller firms choose to employ 
an import broker, then they should be able to avoid any potential 
problems by relying on the broker. If they choose not to employ a 
broker, the firm will have to discover the requirements for obtaining a 
phytosanitary certificate and adjust its procedures accordingly. 
Smaller firms are likely to import only from a few countries and, thus, 
will not have to learn the requirements for many countries. 
Additionally, the 6 month period before the final rule would take 
effect should allow sufficient time to adjust operations as necessary. 
We expect any problems that are created in complying with this rule, if 
implemented, to be short term in nature. As such, based on our initial 
analysis, the economic effects on these entities should not be 
significant.

Travelers to the United States From Foreign Countries

    Travelers to the United States from foreign countries often bring 
fruits and vegetables with them in baggage for personal use. Under the 
proposed rule, travelers would need to obtain a phytosanitary 
certificate in the country of origin for any fruits and vegetables they 
bring into the United States for personal use. An exception to this 
requirement would apply to travelers coming through land ports along 
the Canadian or Mexican borders.
    It would likely be difficult for individual travelers to obtain a 
phytosanitary certificate in a number of countries, particularly during 
the initial years this rule is in effect, if it is adopted. 
Phytosanitary certificates are required to include detailed information 
about where the fruit or vegetable was grown and where and how it was 
treated. This kind of information would not likely be readily available 
to an individual who purchased the produce at a market in a foreign 
country. Unless a foreign government establishes a special program to 
facilitate issuance of certificates to the traveling public, most 
travelers would not know how to obtain a phytosanitary certificate from 
a foreign government even if they did elect to pay the charge.
    The typical fees charged by issuing countries may be prohibitively 
expensive for travelers. The cost of obtaining a phytosanitary 
certificate can vary substantially, from no charge to over $50, based 
on our initial analysis. While these charges would be inconsequential 
for a commercial shipper, they could be greater than the value of 
material typically brought in by travelers. APHIS will issue 
phytosanitary certificates to travelers leaving the United States on 
request at the noncommercial rate of $23. While a few travelers do make 
use of this service, it is a fairly rare occurrence as it is typically 
not worthwhile for travelers.
    We have taken into account the possibility that some travelers may 
consider not obtaining a phytosanitary certificate and attempt to bring 
in fruits and vegetables without declaring them. However, we believe 
few people would take this risk. Persons who fail to declare a 
prohibited item can be fined in addition to having the item 
confiscated.
    In estimating the total cost of this proposed rule on travelers, we 
know that in FY 1999 approximately 60.8 million international air 
travelers arrived in the United States, and that approximately 5.2 
million (or 8.6 percent) of these air travelers arrived with a plant 
item. Although we do not maintain data on the types of plant items 
brought in by air passengers, we know from experience that most of 
these articles would have been fruits or vegetables. We believe that 
once the phytosanitary certification requirement is in place, the vast 
majority of international travelers arriving in the United States would 
forego bringing in

[[Page 45647]]

the typically small amount of fruit and vegetable items for personal 
consumption since the cost or inconvenience in getting the certificate 
would not make it worthwhile. For purposes of illustration, assuming 10 
percent (or 520,000) of the estimated 5.2 million passengers that 
brought in a plant item in FY 1999 decided to obtain a phytosanitary 
certificate, the estimated total cost of certification to these 
travelers would be approximately $11.9 million. This estimation is 
based on using the cost for issuing a noncommercial certificate in the 
United States (i.e., $23), which we believe to be representative of 
what other countries would charge for this service. Once again, we are 
inviting your comments that address this issue.
    Consequently, this proposed rule would make it more difficult for 
travelers to carry fruits and vegetables into the United States for 
personal use. The availability of the required information, as well as 
the cost, will vary from country to country. In many cases, this 
proposed rule could prevent individuals from carrying fruits and 
vegetables with them when traveling to the United States. This could 
mean a small economic loss to all of these travelers, but we believe 
most travelers affected will view this change more as an inconvenience, 
since they may not be able to bring in certain favorite food items.
    It is worth noting that there are some countries where it is common 
for travelers and tourists to bring back specific specialty fruits and 
vegetables. We do not expect that the proposed rule will have a 
significant effect on this type of item. In these cases, a market 
specifically directed at travelers and tourists exists. In order to 
protect this market, the country exporting the specialty item will 
likely set up a program to inspect and certify the items for travelers 
in an efficient and cost effective way. This may be in the form of pre-
certified products being sold at airports or some other similar 
program. This market incentive would lessen the effect of the proposed 
rule in places where these specialty items exist.
    We expect any costs to U.S. importers and travelers to be more than 
offset by the added safeguarding of U.S. agriculture, the environment, 
and the economy against the introduction and dissemination of invasive 
plant pests, which cause economic harm to the United States in the 
billions of dollars annually. The required use of phytosanitary 
certificates should greatly reduce the quantity of high-risk baggage 
imports. It will also provide the additional security of foreign 
inspection for commercial shipments at the place of origin. We also 
believe that, in the long run, as use of phytosanitary certification 
gains further acceptance and credibility, this measure will allow for 
more expedited entry of commercial cargo and travelers from abroad, 
while maintaining the necessary level of quarantine security against 
the introduction and dissemination of invasive pests.
    This proposed rule would also entail information collection 
requirements. These requirements are described in this document under 
the heading ``Paperwork Reduction Act.''

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required 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 proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 00-014-1. 
Please send a copy of your comments to: (1) Docket No. 00-014-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., 
Washington, DC 20250. A comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication of this 
proposed rule.
    We are proposing to amend our regulations to require that a 
phytosanitary certificate accompany all fruits and vegetables imported 
into the United States, with certain exceptions.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 15 minutes per response.
    Respondents: Plant health officials employed by the national 
governments of countries that export fruits and vegetables to the 
United States.
    Estimated annual number of respondents: 4,000.
    Estimated annual number of responses per respondent: 25.
    Estimated annual number of responses: 100,000.
    Estimated total annual burden on respondents: 25,000 hours.
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, 
Plant diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.
    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

    Authority: 7 U.S.C. 166, 450, 7711-7714, 7718, 7731, 7732, and 
7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. In Sec. 319.56-1, the definition of commercial shipment would be 
revised and new definitions would be added, in alphabetical order, for 
noncommercial shipment and phytosanitary certificate to read as 
follows:


Sec. 319.56-1  Definitions.

* * * * *
    Commercial shipment. A shipment containing fruits or vegetables 
that an inspector identifies as having been imported for sale and 
distribution. Such

[[Page 45648]]

identification will be based on a variety of indicators, including, but 
not limited to: Quantity of produce, type of packaging, identification 
of grower or packing house on the packaging, and documents consigning 
the shipment to a wholesaler or retailer.
* * * * *
    Noncommercial shipment. A shipment containing fruits or vegetables 
that an inspector identifies as having been imported for personal use 
and not for sale.
* * * * *
    Phytosanitary certificate. A document, including electronic 
versions, that is related to a fruit or vegetable shipment and that:
    (1) Is patterned after the model certificate of the International 
Plant Protection Convention (IPPC), a multilateral convention on plant 
protection under the authority of the Food and Agriculture Organization 
of the United Nations;
    (2) Is issued by an official of a foreign national plant protection 
organization;
    (3) Is addressed to the plant protection service of the United 
States (Animal and Plant Health Inspection Service);
    (4) Describes the shipment;
    (5) Certifies the place of origin for all contents of the shipment;
    (6) Certifies that the shipment has been inspected and/or tested 
according to appropriate official procedures and is considered to be 
free from quarantine pests of the United States; and
    (7) Contains any additional declarations required under this 
subpart.
* * * * *
    3. In Sec. 319.56-2, paragraphs (a), (b), (c), and (d) would be 
revised to read as follows:


Sec. 319.56-2  Restrictions on entry of fruits and vegetables.

    (a) To be eligible for entry into the United States:
    (1) All fruits and vegetables imported under this subpart, whether 
commercial or noncommercial shipments, must be free from plants or 
portions of plants, as defined in Sec. 319.56-1; and
    (2) All fruits and vegetables imported under this subpart, whether 
commercial or noncommercial shipments, must be accompanied by a 
phytosanitary certificate, except for:
    (i) Fruits and vegetables that are dried, cured, or processed as 
provided in paragraph (b) of this section;
    (ii) Frozen fruits and vegetables as provided in Sec. 319.56-2c of 
this subpart; or
    (iii) Noncommercial shipments brought in from Canada or Mexico 
through land border ports.
    (b) Dried, cured, or processed fruits and vegetables (except frozen 
fruits and vegetables), including cured figs and dates, raisins, nuts, 
and dried beans and peas, may be imported without permit, phytosanitary 
certificate, or other compliance with this subpart. However, a permit, 
a phytosanitary certificate, and other safeguards may be required for 
any such articles when the Deputy Administrator determines that the 
drying, curing, or processing to which the fruits or vegetables have 
been subjected does not entirely eliminate pest risk. Such 
determination with respect to any such articles will become effective 
after due notice.
    (c) Except as provided in paragraph (a) of this section, fruits and 
vegetables grown in Canada may be imported into the United States 
without further restriction under this subpart, Provided, that, in 
accordance with Sec. 319.37-2 of this part, potatoes from Newfoundland 
and that portion of the Municipality of Central Saanich in the Province 
of British Columbia east of the West Saanich Road may not be imported 
into the United States.
    (d) Except as provided in paragraph (a) of this section and 
Secs. 319.56-5, 319.56-6, and 319.56-7, fruits and vegetables grown in 
the British Virgin Islands may be imported into the U.S. Virgin Islands 
without further permit or restriction other than the authorization 
contained in this paragraph. However, such fruits and vegetables are 
exempted from the notice of arrival requirements of Sec. 319.56-5 only 
when an inspector finds that equivalent information is obtainable from 
the U.S. Collector of Customs.
* * * * *
    4. In Sec. 319.56-6, paragraph (c) would be revised to read as 
follows:


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

* * * * *
    (c) Refusal of entry. If an inspector finds that an imported fruit 
or vegetable is prohibited, or is not accompanied by proper 
documentation such as a phytosanitary certificate, or is so infested 
with a plant pest that, in the judgment of the inspector, it cannot be 
cleaned or treated, or contains soil or other prohibited contaminants, 
the entire lot may be refused entry into the United States.
* * * * *

    Done in Washington, DC, this 23rd day of August 2001.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 01-21809 Filed 8-28-01; 8:45 am]
BILLING CODE 3410-34-P