[Federal Register Volume 68, Number 13 (Tuesday, January 21, 2003)]
[Rules and Regulations]
[Pages 2681-2684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1211]



[[Page 2681]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 318 and 319

[Docket No. 00-059-1]


Movement and Importation of Fruits and Vegetables

AGENCY: Animal and Plant Health Inspection Service.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations that govern the movement of 
fruits and vegetables from Puerto Rico and the U.S. Virgin Islands to 
require the treatment of pigeon peas (fresh shelled or in the pod) from 
Puerto Rico for movement into any other area of the United States. In 
addition, we are amending the regulations to require the treatment of 
pigeon peas (fresh shelled or in the pod) from the Dominican Republic 
for importation into any area of the United States except Puerto Rico, 
and to prohibit the importation of mangoes from the British Virgin 
Islands into the U.S. Virgin Islands. These actions are necessary to 
prevent the introduction and dissemination of plant pests that are new 
to or not widely distributed within the United States.

DATES: This interim rule is effective January 21, 2003. We will 
consider all comments that we receive on or before March 24, 2003.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 00-059-1, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 00-059-1. If you use e-mail, 
address your comment to [email protected]. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
00-059-1'' on the subject line.
    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. Hesham A. Abuelnaga, Import 
Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-5334.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables from Puerto 
Rico or Virgin Islands'' (7 CFR 318.58 through 318.58-16) are designed 
to prevent the dissemination of plant pests, including diseases, from 
Puerto Rico and the U.S. Virgin Islands into other parts of the United 
States. The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56 through 319.56-8) prohibit or restrict the importation of fruits 
and vegetables into the United States from certain parts of the world 
to prevent the introduction and dissemination of plant pests that are 
new to or not widely distributed within the United States.
    In this document, we are amending the regulations in ``Subpart--
Fruits and Vegetables from Puerto Rico or Virgin Islands'' to require 
the treatment of pigeon peas (fresh shelled or in the pod) from Puerto 
Rico for movement into any other area of the United States. In 
addition, we are amending the regulations in ``Subpart--Fruits and 
Vegetables'' to require the treatment of pigeon peas (fresh shelled or 
in the pod) from the Dominican Republic for importation into any area 
of the United States, except Puerto Rico, and to prohibit the 
importation of mangoes from the British Virgin Islands into the U.S. 
Virgin Islands. We believe that these actions are necessary to protect 
the United States from the introduction or spread of injurious plant 
pests.

Pigeon Peas From Puerto Rico

    In ``Subpart--Fruits and Vegetables from Puerto Rico or Virgin 
Islands,'' Sec.  318.58-2, among other things, lists the fruits and 
vegetables that are considered regulated articles and that must be 
moved in accordance with the requirements of that section because they 
present a pest risk to other parts of the United States.
    Pigeon peas in the pod are among the fruits and vegetables listed 
in Sec.  318.58-2(b)(1) that may be moved interstate from Puerto Rico 
or the U.S. Virgin Islands when they are free from plant litter, meet 
the container marking requirements of Sec.  318.58-6, and have either 
been inspected and certified by an inspector of the Animal and Plant 
Health Inspection Service (APHIS) as being free from injurious insect 
infestation or have been subjected to a prescribed treatment. Further, 
Sec.  318.58-2(b)(1) provides that pigeon peas in the pod from Puerto 
Rico and the U.S. Virgin Islands may be moved to Baltimore, MD, and 
Atlantic Coast ports north of Baltimore, MD, without treatment, but 
must undergo a prescribed treatment under supervision of an inspector 
if moved to Pacific Coast ports or to Atlantic Coast ports south of 
Baltimore, MD. The Plant Protection and Quarantine (PPQ) Treatment 
Manual, which is incorporated by reference at 7 CFR 300.1, lists methyl 
bromide fumigation as the prescribed treatment for pigeon peas (fresh 
shelled or in the pod). The pest of concern has been Maruca testulalis 
(the bean pod borer).
    Similarly, fresh shelled pigeon peas from Puerto Rico and the U.S. 
Virgin Islands are among the fruits and vegetables listed in Sec.  
318.58-2(b)(2) that may be moved interstate from Puerto Rico and the 
U.S. Virgin Islands without meeting the certification, marking, 
treatment, or other requirements of the subpart as long as they are 
free from plant litter and soil. The fruits and vegetables listed in 
Sec.  318.58-2(b)(2) are, however, subject to inspection, either in the 
field or when presented for shipment, as an inspector may require; if 
injurious insects are detected in the course of an inspection, the 
movement of the fruit or vegetable may be prohibited or certification 
and treatment measures may be required.
    Individuals leaving Puerto Rico and the U.S. Virgin Islands by 
aircraft sometimes take pigeon peas (fresh shelled or in the pod) to 
other parts of the United States. In accordance with Sec.  318.58-
10(a), all air passengers must offer their carry-on and check-in 
baggage and other personal effects for inspection by APHIS inspectors 
prior to boarding flights from Puerto Rico or the U.S. Virgin Islands 
to other parts of the United States, except Guam. The purpose of the 
inspections is to ensure that the baggage does not contain any 
agricultural articles that could carry plant pests to other parts of 
the United States.
    During these required inspections, inspectors have detected 
Melanagromyza obtusa (pigeon pea pod fly) in untreated pigeon peas 
(fresh shelled and in the pod) from Puerto Rico. In fact, since 
February 2000,

[[Page 2682]]

inspectors have intercepted the pigeon pea pod fly over 300 times 
during domestic terminal predeparture inspections of baggage from 
passengers destined for the United States from Puerto Rico. The pigeon 
pea pod fly is currently widely distributed in Asia and Australasia, 
and surveys are ongoing to determine the extent of its distribution in 
the Caribbean basin. The pigeon pea pod fly is a serious pest of pigeon 
pea in its natural range and could be of economic concern if it becomes 
established in North America outside the Caribbean basin.
    The natural range for the pigeon pea pod fly is in the warmest 
climatic zones--equatorial and tropical, so areas of the United States 
other than Puerto Rico and the U.S. Virgin Islands most at risk for the 
introduction and establishment of this pest are the warmer southwestern 
States, southern Florida, and Hawaii. Recent studies have shown that 
eggs, larvae, and pupae can develop in temperatures ranging from 52 to 
56 degrees Fahrenheit, however, and the pigeon pea pod fly has also 
been found in high concentrations in northern India and Nepal, both of 
which experience cold winters where the temperatures range from 20 to 
50 degrees Fahrenheit. This wide geographic distribution outside its 
natural range demonstrates some adaptability to adverse climatic 
conditions, so there exists a moderate risk for the introduction and 
establishment of the pigeon pea pod fly in the more temperate, northern 
States as well.
    Although the pigeon pea pod fly's primary host is the pigeon pea, 
it has been reported on alternate host plants in other countries when 
pigeon pea is unavailable. Since pigeon pea is grown to a limited 
extent only in southern Florida, the potential impact of this pest on 
the continental United States would depend upon its ability to find a 
suitable, alternate host. Studies into potential alternate hosts for 
the pigeon pea pod fly present in the continental United States, 
including kidney bean, chick pea, and black-eyed pea, are ongoing but 
no findings have been confirmed.
    Considering that the pigeon pea pod fly is now established in the 
Caribbean even though its natural range is Asia and Australasia, this 
pest has demonstrated an ability to disperse and to establish itself 
readily if suitable hosts and climate are present. The pest's apparent 
climatic adaptability, as discussed above, combined with its ability to 
survive on secondary hosts, could lead to its establishment in the 
continental United States despite the fact that pigeon pea is not 
commercially grown here. The potential impact of the establishment of 
this pest is difficult to predict, but it has a devastating effect on 
its primary host in its natural range.
    To prevent the spread of the pigeon pea pod fly into additional 
areas of the United States, this interim rule requires all pigeon peas 
(fresh shelled or in the pod) from Puerto Rico to be treated with 
methyl bromide, which is known to be effective against the pigeon pea 
pod fly, for movement into any other part of the United States. This 
rule places the mandatory treatment requirement for pigeon peas from 
Puerto Rico in a new paragraph (b)(4) in Sec.  318.58-2. In conjunction 
with this change, we have amended Sec.  318.58-2(b)(1) and (b)(2) so 
that the requirements for pigeon peas in those paragraphs now apply 
only to pigeon peas from the U.S. Virgin Islands.
    Prior to this interim rule, Sec.  318.58(c) allowed unrestricted 
movement of all fruits or vegetables in either direction between Puerto 
Rico and the U.S. Virgin Islands. At this time, the pigeon pea pod fly 
has not been detected in the U.S. Virgin Islands; therefore, we are 
amending Sec.  318.58(c) to specify that the movement of pigeon peas 
(fresh shelled or in the pod) from Puerto Rico to the U.S. Virgin 
Islands is restricted, in accordance with Sec.  318.58-2(b)(4).

Pigeon Peas From the Dominican Republic

    In ``Subpart--Fruits and Vegetables,'' paragraph (e) of Sec.  
319.56-2 provides conditions under which fruits or vegetables that are 
not otherwise restricted by quarantines or other orders may be 
imported. Under Sec.  319.56-2(e), such fruits and vegetables may be 
imported under a permit if, among other things, the fruits or 
vegetables are not attacked in the country of origin by injurious 
insects, including fruit and melon flies (Tephritidae).
    Until recently, untreated pigeon peas (fresh shelled or in the pod) 
from the Dominican Republic were allowed to be imported into the United 
States under permit in accordance with Sec.  319.56-2(e). Although no 
commercial shipments of pigeon peas have been exported to the United 
States from the Dominican Republic in over a decade, individuals 
arriving in the United States from the Dominican Republic sometimes 
bring pigeon peas in their baggage, which is subject to inspection by 
USDA inspectors in accordance with Sec.  319.56-7. During these 
inspections, USDA inspectors have detected the pigeon pea pod fly in 
pigeon peas (fresh shelled and in the pod) from the Dominican Republic.
    To prevent the introduction of the pigeon pea pod fly from the 
Dominican Republic into noninfested areas of the United States, this 
interim rule requires that pigeon peas (fresh shelled or in the pod) 
from the Dominican Republic be treated with methyl bromide for 
importation into the United States. We are adding this requirement to 
Sec.  319.56-2x(a), which lists fruits and vegetables that may be 
imported only if treated in accordance with the PPQ Treatment Manual. 
However, because pigeon pea pod fly exists in Puerto Rico, we will not 
require pigeon peas (fresh shelled or in the pod) from the Dominican 
Republic to be treated for importation into Puerto Rico.

Mangoes From the British Virgin Islands

    In accordance with Sec.  319.56-2(d), fruits and vegetables from 
the British Virgin Islands may be imported into the U.S. Virgin Islands 
without a permit, or other restriction, subject to the requirements in 
Sec.  319.56-6. Under Sec.  319.56-6, all imported fruits and 
vegetables, as a condition of entry, are subject to inspection, 
disinfection, or both, at the port of first arrival, as may be required 
by a USDA inspector to detect and eliminate plant pests.
    The mango seed weevil (Sternochetus mangiferae) is a pest of 
mangoes that is undetectable until the larvae tunnel their way out of 
the seed, which can make visual detection difficult. However, USDA 
inspectors in the U.S. Virgin Islands have detected the mango seed 
weevil on a regular basis in shipments of mangoes from the British 
Virgin Islands.
    In order to ensure that the mango seed weevil is not introduced 
into the U.S. Virgin Islands, we are amending Sec.  319.56-2(d) to 
prohibit the importation of mangoes from the British Virgin Islands 
into the U.S. Virgin Islands. Although we recently approved an 
irradiation treatment for mangoes, which has been shown to eliminate 
the mango seed weevil, we chose prohibition in this case because there 
does not appear to be commercial shipment of mangoes or other fruits 
and vegetables from the British Virgin Islands to the U.S. Virgin 
Islands that would support an irradiation facility in the British 
Virgin Islands. If, at a later date, an approved irradiation facility 
is built and operated under a compliance agreement in accordance with 
the regulations in Sec.  305.2, we will reconsider this prohibition.

Emergency Action

    This rulemaking is necessary on an emergency basis to prevent the 
introduction of the pigeon pea pod fly

[[Page 2683]]

and the mango seed weevil into noninfested areas of the United States 
where those pests could become established. Under these circumstances, 
the Administrator has determined that prior notice and opportunity for 
public comment are contrary to the public interest and that there is 
good cause under 5 U.S.C. 553 for making this rule effective less than 
30 days after publication in the Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    This rule requires the treatment of pigeon peas (fresh shelled and 
in the pod) from Puerto Rico for movement into any other area of the 
United States. In addition, this rule requires the treatment of pigeon 
peas (fresh shelled and in the pod) from the Dominican Republic for 
importation into the United States, except Puerto Rico. This rule also 
prohibits the importation of mangoes from the British Virgin Islands 
into the U.S. Virgin Islands. We believe that these actions are 
necessary to protect the United States from the spread of injurious 
plant pests.

Pigeon Peas From Puerto Rico

    Prior to this interim rule, pigeon peas (in the pod) from Puerto 
Rico were required to be treated only if they were moved to Pacific 
Coast ports or to Atlantic Coast ports south of Baltimore, MD, and 
pigeon peas (fresh shelled) from Puerto Rico were required to be 
treated only if found to be infested with injurious insects. This rule 
requires the treatment of pigeon peas (fresh shelled or in the pod) 
from Puerto Rico for movement into any other area of the United States 
to prevent the spread of the pigeon pea pod fly.
    We do not believe that this change will have a significant economic 
effect on small entities in the United States. In Puerto Rico, pigeon 
peas are a backyard product and are consumed domestically. During the 
last 9 years of reported data, the production of pigeon peas in Puerto 
Rico fluctuated from 2,119 metric tons in 1993, to 454 metric tons in 
1996, to 1,062 metric tons in 1998 and 1999, and then remained steady 
at 1,060 metric tons in 2000 and 2001. In 1993, there were 1,166 farms 
in Puerto Rico planted with pigeon peas; however, the 1998 U.S. Census 
of Agriculture reported that there were 660 farms in Puerto Rico 
planted with pigeon peas, a 43 percent decline in 5 years in the number 
of farms planted with pigeon peas. During this time, there were no 
reported commercial shipments from Puerto Rico into other areas of the 
United States or to foreign destinations.

Pigeon Peas From the Dominican Republic

    Prior to this interim rule, untreated pigeon peas (fresh shelled or 
in the pod) from the Dominican Republic could be imported into the 
United States subject to inspection and disinfection at the port of 
first arrival. This rule requires the treatment of pigeon peas (fresh 
shelled or in the pod) from the Dominican Republic for importation into 
any area of the United States except Puerto Rico, to prevent the 
introduction of the pigeon pea pod fly into noninfested areas of the 
United States.
    We do not believe that this change will have a significant economic 
effect on small entities in the United States. In 1986, 734 metric tons 
of pigeon peas from the Dominican Republic were imported into the 
United States, and in 1991, 12 metric tons of pigeon peas from the 
Dominican Republic were imported into the United States. Since 1991, 
there have been no reported commercial imports of pigeon peas from the 
Dominican Republic into the United States.

Mangoes From the British Virgin Islands

    Until recently, mangoes from the British Virgin Islands were 
allowed to be imported into the U.S. Virgin Islands without treatment. 
However, due to the detection of the mango seed weevil in mangoes from 
the British Virgin Islands, we are prohibiting the importation of 
mangoes from the British Virgin Islands into the U.S. Virgin Islands. 
Although we recently approved an irradiation treatment that is 
effective for mango seed weevil, there is currently no irradiation 
treatment facility in the British Virgin Islands capable of treating 
the mangoes in accordance with the phytosanitary regulations in Sec.  
305.2.
    We do not believe that this change will have a significant economic 
effect on small entities in the United States because there is 
apparently no commercial movement of mangoes from the British Virgin 
Islands to the U.S. Virgin Islands.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

List of Subjects

7 CFR Part 318

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

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 are amending 7 CFR parts 318 and 319 as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

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

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


    2. In Sec.  318.58, paragraph (c) is revised to read as follows:


Sec.  318.58  Notice of quarantine.

* * * * *
    (c) Except for pigeon peas (fresh shelled or in the pod) moved from 
Puerto Rico to the U.S. Virgin Islands, which must meet the 
requirements of Sec.  318.58-2(b)(4), no restrictions are placed on the 
movement of fruits or vegetables in either direction between Puerto 
Rico and the U.S. Virgin Islands.
* * * * *

    3. Section 318.58-2 is amended as follows:
    a. By revising paragraph (b)(1) to read as set forth below.
    b. In paragraph (b)(2), by removing from the list the words 
``Pigeonpea

[[Page 2684]]

(fresh shelled)'' and adding the words ``Pigeon peas (fresh shelled) 
from the U.S. Virgin Islands'' in their place.
    c. By adding a new paragraph (b)(4) to read as set forth below.


Sec.  318.58-2  Regulated articles.

* * * * *
    (b) * * *
    (1) Subject to the conditions provided in this section, and to any 
treatment prescribed by the Administrator, the following fruits and 
vegetables may be moved when they are free from plant litter, are 
marked in compliance with Sec.  318.58-6, and have been inspected by an 
inspector and certified by the inspector to be free from injurious 
insect infestation (including the West Indian fruit fly and the bean 
pod borer) or to have been given prescribed treatment:
    Citrus fruits (orange, grapefruit, lemon, citron, and lime);
    Corn (sweet corn on cob);
    Mangoes (Mangifera spp.), no larger than size 8 (no more than 700 g 
each), when treated as prescribed in the Plant Protection and 
Quarantine Treatment Manual, which is incorporated by reference at 
Sec.  300.1 of this chapter; Peppers;
    Pigeon peas (in the pod) from the U.S. Virgin Islands and string 
beans, lima beans, faba beans, and fresh okra from Puerto Rico or the 
U.S. Virgin Islands.\1\
* * * * *
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    \1\ These products will be certified for movement to Pacific 
Coast ports or to Atlantic Coast ports south of Baltimore, MD, only 
when they have been treated as prescribed in the Plant Protection 
and Quarantine Treatment Manual. Such products may be certified for 
movement to Baltimore, MD, and Atlantic Coast ports north of 
Baltimore without such treatment, but untreated fresh okra may be so 
certified only for immediate processing or consumption in these 
northern areas.
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    (4) Pigeon peas (fresh shelled or in the pod) from Puerto Rico may 
be moved to any other area of the United States only if treated in 
accordance with the Plant Protection and Quarantine Treatment Manual.


Sec.  318.58-4a  [Amended]

    4. Section 318.58-4a is amended by redesignating footnote 1 and its 
reference in the text as footnote 2.


Sec.  318.58-12  [Amended]

    5. Section 318.58-12 is amended by redesignating footnotes 2 and 3 
and their references in the text as footnotes 3 and 4, respectively.

PART 319--FOREIGN QUARANTINE NOTICES

    6. The authority citation for part 319 continues 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.


    7. In Sec.  319.56-2, paragraph (d) is revised to read as follows:


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

* * * * *
    (d) Fruits and vegetables grown in the British Virgin Islands may 
be imported into the U.S. Virgin Islands without further permit other 
than the authorization contained in this paragraph but subject to the 
requirements of paragraph (a) of this section, and of Sec. Sec.  
319.56-5, 319.56-6, and 319.56-7, except that:
    (1) Such fruits and vegetables are exempted from the notice of 
arrival requirements of Sec.  319.56-5 when an inspector finds that 
equivalent information is obtainable from the U.S. Customs Service; and
    (2) Mangoes grown in the British Virgin Islands are prohibited 
entry into the U.S. Virgin Islands.
* * * * *

    8. In Sec.  319.56-2x, paragraph (a), the table is amended by 
adding, in alphabetical order, an entry for pigeon peas from the 
Dominican Republic to read as follows:


Sec.  319.56-2x  Administrative instructions; conditions governing the 
entry of certain fruits and vegetables for which treatment is required.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
          Country/locality                 Common name           Botanical name             Plant part(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Dominican Republic.................  Pigeon peas...........  Cajanus cajan.........  Pod of shelled (Treatment
                                                                                      not required for pigeon
                                                                                      peas (in the pod or fresh
                                                                                      shelled) imported into
                                                                                      Puerto Rico.)
 
                                                  * * * * * * *
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* * * * *

    Done in Washington, DC, this 14th day of January 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-1211 Filed 1-17-03; 8:45 am]
BILLING CODE 3410-34-P