[Federal Register Volume 67, Number 116 (Monday, June 17, 2002)]
[Rules and Regulations]
[Pages 41155-41157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15073]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 116 / Monday, June 17, 2002 / Rules 
and Regulations  

[[Page 41155]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 318

[Docket No. 98-127-2]


Rambutan, Longan, and Litchi From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending the Hawaiian fruits and vegetables regulations 
to provide alternative treatments for rambutan, longan, and litchi 
moving interstate from Hawaii. This action will facilitate the 
interstate movement of rambutan, longan, and litchi from Hawaii while 
continuing to provide protection against the spread of injurious plant 
pests from Hawaii to other parts of the United States. We are also 
consolidating and updating the existing regulations governing the 
interstate movement of certain fruits from Hawaii in order to make the 
regulations easier to understand.

DATES: This regulation is effective July 17, 2002. The incorporation by 
reference of the material described in the rule is approved by the 
Director of the Federal Register as of July 17, 2002.

FOR FURTHER INFORMATION CONTACT: Donna L. West, Import Specialist, 
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. Regulation is necessary to prevent the spread 
of dangerous plant diseases and pests that exist in Hawaii, including 
the Mediterranean fruit fly (Ceratitis capitata), the melon fly 
(Bactrocera cucurbitae), and the Oriental fruit fly (Bactrocera 
dorsalis).
    On July 18, 2001, we published in the Federal Register (64 FR 
37425-37429, Docket No. 98-127-1) a proposal to amend the regulations 
by providing alternative treatments for rambutan, longan, and litchi 
moving interstate from Hawaii. We proposed this action because we 
determined that it would facilitate the interstate movement of 
rambutan, longan, and litchi from Hawaii while continuing to provide 
protection against the spread of injurious plant pests from Hawaii to 
other parts of the United States. In the proposed rule, we also 
proposed to consolidate and update the existing regulations governing 
the interstate movement of certain fruits from Hawaii in order to make 
the regulations easier to understand.
    We solicited comments concerning our proposal for 60 days ending 
September 17, 2001. We received one comment by that date. The comment 
was from an agricultural scientist. The commenter generally supported 
the proposed rule and provided additional information for our economic 
analysis. The commenter also raised a few issues that we have discussed 
below.
    Comment: Whenever inspection for pests is mentioned in the 
regulations, APHIS should emphasize that only the presence of live (not 
dead) pests can interrupt a shipment of treated fruits.
    Response: Currently, under Sec. 318.13-1, and for the purposes of 
Part 318 Hawaiian and Territorial Quarantine Notices, plant pests are 
defined as ``the injurious insects and plant diseases referred to in 
Sec. 318.13,\1\ in any stage of development.'' We believe that this 
definition implies that only live plant pests should be of concern to 
inspectors, though inspectors, based on their own judgment, may 
consider the presence of dead plant pests to be evidence of pest 
activity that could warrant more detailed inspection of the affected 
commodity. In any case, only the presence of live plant pests would be 
grounds for taking quarantine action on a shipment of treated fruits or 
vegetables.
---------------------------------------------------------------------------

    \1\ Section 318.13 lists the Mediterranean fruit fly (Ceratitis 
capitata (Wied.)), the melon fly (Bactrocera cucurbitae Coq.), the 
oriental fruit fly (Bactrocera dorsalis Hendl.), green coffee scale 
(Coccus viridis (Green)), the bean pod borer (Maruca testulalis 
(Geyer)), the bean butterfly (Lampides boeticus (L.)), the Asiatic 
rice borer (Chilo suppressalis), the mango weevil (Sternochetus 
mangiferae (F.)), the Chinese rose beetle (Adoretus sinicus Burm.), 
and a cactus borer (Cactoblastis cactorum (Berg.)) as pests that 
exist in Hawaii that are new to or not widely prevalent within the 
continental United States.
---------------------------------------------------------------------------

    However, since the current definition for ``plant pests'' does not 
refer to some pests that may be present in Hawaii, we are revising the 
definition to reflect the most current usage of the term. For the 
purposes of 7 CFR part 318, a plant pest will be defined as ``any 
living stage of any of the following that can directly or indirectly 
injure, cause damage to, or cause disease in any plant or plant 
product: A protozoan, nonhuman animal, parasitic plant, bacterium, 
fungus, virus or viroid, infectious agent or other pathogen, or any 
article similar to or allied with any of those articles.'' We believe 
this definition, which is taken from the Plant Protection Act (7 U.S.C. 
7701-7772), provides adequate assurance that any plant pest can be 
subject to quarantine action under the regulations in part 318.
    Comment: The hot water treatment protocol for longan states that 
after treatment, hydrocooling for 20 minutes at 75.2  deg.F is 
recommended, though not required, to prevent injury to the fruit from 
the hot water immersion treatment. Hot water treatment is always 
injurious to fruit quality, so the protocol should use the term 
``reduce'' rather than the term ``prevent.''
    Response: We agree with the commenter, and are revising the 
treatment's hydrocooling recommendation accordingly.
    Comment: Recently published data (submitted by the commenter) 
indicate that the hot water immersion treatment for litchi and longan 
will also kill the larvae and pupae of moths of the genus 
Cryptophlebia, two species of which attack litchi and longan in Hawaii. 
A statement to this effect could be added to the final rule.
    Response: We had not previously required treatment of longans and 
litchis for Crytophlebia spp. because we are confident that we can 
intercept such pests via inspection. As we will continue to inspect for 
the presence of Cryptophlebia spp., we do not believe it

[[Page 41156]]

is necessary to refer to Cryptophlebia spp. in the final rule with 
regard to the treatment of longans and litchis. We acknowledge, 
however, that the ability of the hot water treatment to kill 
Cryptophlebia spp. will contribute to overall quarantine security.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. For this 
action, the Office of Management and Budget has waived its review under 
Executive Order 12866.
    In this document, we are amending the Hawaiian fruits and 
vegetables regulations to provide for the interstate movement of 
rambutan, litchi, and longan from Hawaii after the fruit is treated, 
under certain conditions, for fruit flies. Under this final rule, those 
fruits will be allowed to move interstate from Hawaii if they are first 
inspected and then treated for pests using the following types of 
treatments:

------------------------------------------------------------------------
                   Fruit                            Treatment(s)
------------------------------------------------------------------------
Rambutan..................................  High temperature forced air
                                             or vapor heat.
Litchi....................................  Vapor heat.
Longan....................................  Hot water.
------------------------------------------------------------------------

    This action will facilitate the interstate movement of rambutan, 
longan, and litchi from Hawaii while continuing to provide protection 
against the spread of injurious plant pests from Hawaii to other parts 
of the United States.
    Prior to the adoption of this final rule, the above fruits were 
already allowed to move interstate from Hawaii if treated with 
irradiation in accordance with the regulations in Sec. 318.13-4f. 
Litchi could also be moved interstate from Hawaii if treated with hot 
water in accordance with the Plant Protection and Quarantine Treatment 
Manual. Longan and litchi are not allowed to be moved into Florida due 
to the risk of introducing the litchi rust mite into areas in Florida 
where longan and litchi are commercially grown.
    Providing alternative pest treatment methods for rambutan, litchi, 
and longan fruits from Hawaii is expected to stimulate growth of the 
industry and provide access to the larger mainland market.
    Production of rambutan in Hawaii decreased from 264,300 pounds in 
1997 to about 139,200 pounds in 1998. Rambutan farm prices increased 
from $2.71 per pound to $3.03 per pound during that period. There are 
approximately 50 farms in Hawaii that produce rambutan, and each of 
those farms can be considered to be small entities according to Small 
Business Administration (SBA) criteria (i.e., a producer with less than 
$750,000 in annual sales).
    In 1998, the United States produced approximately 2.3 million 
pounds of litchi, with Hawaii producing 157,000 pounds of litchi, 
valued at $309,000, during that same period. There are approximately 75 
farms in Hawaii that produce litchi, and each is a small entity 
according to SBA criteria.
    The United States produces approximately 1.4 million pounds of 
longan (mostly in Florida) annually, with a market value of 
approximately $767,000. Hawaii produced approximately 17,000 pounds of 
longan in 1998, and anecdotal evidence suggests that production has 
increased since 1998, though no data is available to confirm that 
suspected trend. Regardless, any producers of longan in Hawaii are 
likely to be small entities according to SBA criteria.
    Currently, there are 5 fruit packing plants in Hawaii that have a 
total of 11 high temperature forced air and vapor heat treatment 
chambers. Four of those chambers have not been used recently and 
require recertification. In addition, one packing plant has the 
capability to treat fruits with irradiation. There is one hot water 
immersion treatment facility that has recently been built in Hawaii, 
but it has not been certified by USDA.
    Vapor heat and high temperature forced air treatments require 
between 4 and 6 hours of treatment. The cost of treatment ranges from 
0.92 to 2.3 cents per pound (approximately $18.40 to $46.00 per ton 
with capital construction costs of about $0.9 million to $1.2 million), 
while irradiation requires about 40 minutes of treatment at a cost of 
approximately 0.93 to 1.58 cents per pound (approximately $18.60 to 
$31.60 per ton with capital construction cost of about $2.8 million to 
$3.8 million for a freestanding facility).
    The recently built commercial continuous-feed hot water immersion 
treatment unit cost $75,000 and can process 500-600 pounds of fruit per 
hour. It is estimated that using hot water treatment as an alternative 
would cost, taking into account the opportunity cost of capital, labor 
cost, and fuel cost, about $13.95 per ton. Unless there is a large 
volume of fruit available for treatment, the equipment would likely be 
underutilized. It is unclear whether availability and operation of a 
hot water treatment facility would have an effect on other types of 
treatment facilities in Hawaii.
    Producers would be able to utilize existing facilities in Hawaii to 
treat fruits under the conditions specified in this final rule. 
Adoption of this final rule will likely result in increased revenue for 
the existing vapor heat and dry heat facilities in Hawaii. 
Additionally, growers in Hawaii may benefit from the increased 
opportunity for selling their products in a larger and more diverse 
market and from potential decreases in the cost of treating fruits. If 
producers respond by planting and harvesting more acreage of these 
fruits, both consumers and firms that provide treatment services are 
likely to benefit.
    All of the treatment methods would be more economical for owners of 
facilities and sellers of fruits if the treatments are applied to 
larger shipments. Initial investments associated with the treatments 
considered here would depend on the number, capacity, and complexity of 
required facilities. Costs per pound of fruit treated can rise 
dramatically when capital-intensive facilities are operated at less 
than design capacity. This would happen when the commodity is not 
shipped year round, or when production decreases dramatically (as in 
the case of a freeze), or if trade patterns or the regulatory 
environment changes substantially. The effect of underutilized capital 
equipment on per-unit treatment costs tends to be greater the more 
expensive the initial capital investment. For example, a recent study 
estimated that operating strawberry irradiators at 25 percent of their 
annual throughput capacity can increase the cost of irradiating 
strawberries by 212 percent, from $0.034/lb treated (when plant is 
operated at 100 percent annual capacity) to $0.106/lb treated (when 
plant is operated at only 25 percent of capacity).
    The economic effects of this rule on mainland growers and prices on 
the mainland are not expected to be significant. However, mainland 
consumers of fresh rambutan, litchi, and longan could likely benefit 
from increased seasonal and regional availability and from the 
increased variety of fresh fruits, as well as from more stable prices.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

[[Page 41157]]

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 final 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 (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

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 parts 300 and 318 as follows:

PART 300--INCORPORATION BY REFERENCE

    1. The authority citation for part 300 continues to read as 
follows:

    Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.


    2. In Sec. 300.1, paragraph (a) is amended as follows:
    a. In paragraph (a)(2), by removing the word ``and''.
    b. In paragraph (a)(3), by removing the period and adding the word 
``; and'' in its place.
    c. By adding a new paragraph (a)(4) to read as follows.


Sec. 300.1  Plant Protection and Quarantine Treatment Manual.

    (a) * * *
    (4) Treatments T102-d-1, T103-e, T106-c, T106-f, and T106-g, dated 
February 2002.
* * * * *

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

    3. The authority citation for part 318 is revised to read as 
follows:

    Authority: U.S.C. 7711, 7712, 7714, 7731, 7754, and 7756; 7 CFR 
2.22, 2.80, and 371.3.


    4. In Sec. 318.13-1, the definition of plant pests is revised to 
read as follows:


Sec. 318.13-1  Definitions.

* * * * *
    Plant pests. Any living stage of any of the following that can 
directly or indirectly injure, cause damage to, or cause disease in any 
plant or plant product: A protozoan, nonhuman animal, parasitic plant, 
bacterium, fungus, virus or viroid, infectious agent or other pathogen, 
or any article similar to or allied with any of those articles.
* * * * *

    5. In Sec. 318.13-2, paragraph (b), the entry for Allium spp. is 
removed and the following entries are added in its place:


Sec. 318.13-2  Regulated articles.

* * * * *
    (b) * * *

    Allium spp. (bulb only).
    Allium tuberosum.
* * * * *

    6. Section 318.13-4b is revised to read as follows:


Sec. 318.13-4b  Administrative instructions; conditions governing the 
interstate movement from Hawaii of certain fruits for which treatment 
is required.

    (a) General restrictions. Fruits listed in this section may only be 
moved interstate from Hawaii in accordance with this section or in 
accordance with other applicable sections in this subpart.
    (b) Eligible fruits. The following fruits may be moved interstate 
from Hawaii if, prior to interstate movement, they are inspected for 
plant pests by an inspector and are then treated for fruit flies under 
the supervision of an inspector with a treatment prescribed in the 
Plant Protection and Quarantine (PPQ) Treatment Manual, which is 
incorporated by reference at Sec. 300.1 of this chapter: Avocados, bell 
peppers, carambolas, eggplants, Italian squash, litchi, longan, 
papayas, pineapples (other than smooth cayenne), rambutan, and 
tomatoes.
    (c) Subsequent handling. All handling of fruits subsequent to 
treatment in Hawaii must be carried out under the supervision of an 
inspector and according to the inspector's instructions.
    (d) Destination restrictions. Litchi and longan that are moved 
interstate from Hawaii under this section may not be moved into Florida 
due to the litchi rust mite (Eriophyes litchi). Cartons used to carry 
such fruits must be stamped: ``Not for movement into or distribution in 
FL.''
    (e) Costs and charges. All costs of treatment and any post-
treatment safeguards prescribed by an inspector must be borne by the 
owner of the fruits or the owner's representative. The services of an 
inspector during regularly assigned hours of duty and at the usual 
place of duty are furnished by APHIS without charge.
    (f) Department not responsible for damages. Treatments prescribed 
in the PPQ Treatment Manual are judged from experimental tests to be 
safe for use with the fruits listed in paragraph (b) of this section. 
However, the Department assumes no responsibility for any damage 
sustained through or in the course of the treatment, or because of 
safeguards required by an inspector.


Sec. 318.13-4d  [Removed and Reserved]

    7. Section 318.13-4d is removed and reserved.


Sec. 318.13-4e  [Removed and Reserved]

    8. Section 318.13-4e is removed and reserved.


Sec. 318.13-4h  [Removed and Reserved]

    9. Section 318.13-4h is removed and reserved.

    Done in Washington, DC, this 10th day of June 2002.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 02-15073 Filed 6-14-02; 8:45 am]
BILLING CODE 3410-34-P