[Federal Register Volume 68, Number 122 (Wednesday, June 25, 2003)]
[Rules and Regulations]
[Pages 37904-37923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15908]



[[Page 37903]]

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Part II





Department of Agriculture





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Animal and Plant Health Inspection Service



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7 CFR Parts 300 and 319



Importation of Fruits and Vegetables; Final Rule

  Federal Register / Vol. 68, No. 122 / Wednesday, June 25, 2003 / 
Rules and Regulations  

[[Page 37904]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 319

[Docket No. 02-026-4]


Importation of Fruits and Vegetables

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the fruits and vegetables regulations to list 
a number of fruits and vegetables from certain parts of the world as 
eligible, under specified conditions, for importation into the United 
States. All of the fruits and vegetables, as a condition of entry, will 
be inspected and subject to treatment at the port of first arrival as 
may be required by an inspector. In addition, some of the fruits and 
vegetables will be required to be treated or meet other special 
conditions. This action will provide the United States with additional 
types and sources of fruits and vegetables while continuing to protect 
against the introduction of quarantine pests through imported fruits 
and vegetables. We are also recognizing areas in several countries as 
free from certain fruit flies; amending the packing requirements for 
certain commodities; expanding locations in the northeastern United 
States where cold treatment can be conducted; updating and clarifying 
restrictions on the entry of fruits and vegetables; updating and 
clarifying permit procedures, including amendment, denial, or 
withdrawal of permits; requiring full disclosure of fruits and 
vegetables at the port of first arrival and clarifying the conditions 
under which they may be released for movement; and making other 
miscellaneous changes.

DATES: This regulation is effective June 25, 2003. The incorporation by 
reference of the material described in the rule is approved by the 
Director of the Federal Register as of June 25, 2003.

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

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 
through 319.56-8, referred to below as the regulations) prohibit or 
restrict the importation of fruits and vegetables into the United 
States from certain parts of the world to prevent the introduction and 
spread of plant pests.
    On October 1, 2002, we published a proposed rule in the Federal 
Register (67 FR 61547-61564, Docket No. 02-026-1) to amend the 
regulations to list a number of fruits and vegetables from certain 
parts of the world as eligible, under specified conditions, for 
importation into the United States. We also proposed to make several 
other amendments to update and clarify the regulations and improve 
their effectiveness. On November 7, 2002, we published a correction to 
the proposed rule (67 FR 6799, Docket No. 02-026-2).
    We solicited comments concerning our proposal for 60 days ending 
December 2, 2002. We received 60 comments by that date. They were from 
growers, packers, shippers, industry and trade representatives, and 
representatives of State and foreign governments. While 42 commenters 
wrote to support specific portions of the rule, 18 wrote to express 
concern or object to some aspect of the proposed rule. These comments 
are discussed below.

General

    Given that certain Animal and Plant Health Inspection Service 
(APHIS) functions and personnel were moved to the Department of 
Homeland Security (DHS), one commenter recommended that we delay 
issuing a final rule based on the proposed rule because a transition 
period is not an appropriate time to add new responsibilities and 
procedures. While we are allowing additional fruits and vegetables to 
be imported into the United States and are making other amendments to 
update and clarify the regulations and improve their effectiveness, we 
do not consider these amendments as new responsibilities and 
procedures. Therefore, we are not delaying this final rule as a result 
of the transfer of functions to DHS.
    In accordance with Executive Order 12988, we included a statement 
in our proposed rule giving notice that any State and local laws and 
regulations regarding the importation of fruits and vegetables under 
this rule would be preempted while the fruits and vegetables are in 
foreign commerce. Two commenters objected to this language concerning 
the preemption of State and local laws. One commenter was concerned 
that APHIS was imposing mandates upon State and local governments by 
preempting their authority to restrict entry of fruits and vegetables 
imported under the regulations, without assuming the full cost of 
eradication for pests and diseases that may be hitchhiking on these 
commodities. Both commenters objected to the concept that imported 
fruits and vegetables are considered in foreign commerce until sold to 
the ultimate consumer.
    One of the requirements under Executive Order 12988 is that a 
Federal agency specify in clear language the preemptive effect it 
believes will be given to its regulations. Preemption in foreign 
commerce is specifically addressed in Sec.  436(a) of the Plant 
Protection Act (7 U.S.C. 7756(a)), which states that ``[n]o State or 
political subdivision of a State may regulate in foreign commerce any 
article, means of conveyance, plant, biological control organism, plant 
pest, noxious weed, or plant product in order--(1) To control a plant 
pest or noxious weed; (2) to eradicate a plant pest or noxious weed; or 
(3) prevent the introduction or dissemination of a biological control 
organism, plant pest, or noxious weed.'' When foreign commerce ceases 
is a question of fact that must be addressed in each individual case. 
However, the Department of Agriculture has taken the position that 
fresh fruits and vegetables imported into the United States for 
immediate distribution and sale remain in foreign commerce until they 
are sold to the ultimate consumer. Other questions regarding when 
foreign commerce ceases must be addressed on a case-by-case basis and 
will be resolved based on the facts in each particular case.
    One commenter recommended that the economic analysis address, in 
detail, the economic effects of domestic infestation that could occur 
under the proposed regulations. APHIS conducts economic analyses for 
import-related rulemaking using the assumption that the importation of 
a particular commodity will not result in the introduction of pests or 
diseases; indeed, the prevention of such introductions is a primary 
goal of those rulemakings. APHIS does, however, routinely attempt to 
quantify, to the extent possible, the size (in dollar terms) of the 
domestic industry that stands to be affected by a rulemaking. The 
introduction of a pest or disease would likely be detrimental to the 
economic health of that domestic industry, as well as related 
industries. However, without some indication as to the actual or likely 
scope of a pest or disease outbreak, any estimate of losses would have 
to range from somewhere above zero to 100 percent. Further, if we had a 
sense that an outbreak was likely, we would not promulgate the rule.

[[Page 37905]]

    Another commenter stated that APHIS' relaxation of U.S. standards, 
while foreign trading partners continue to strengthen their opposition 
to similar standards, is multiplying the economic harm to American 
agricultural interests and amounts to ``unilateral agricultural 
disarmament'' in the international trade arena. Our regulations are 
based on pest risk assessments, survey data, and other science-based 
considerations. We analyze each amendment to the regulations concerning 
the admissibility of specific fruits and vegetables, and fruits and 
vegetables in general, independent of foreign export agreements. The 
amendments to the regulations in this rule are not a relaxation of our 
standards.
    One commenter asked us to assure U.S. agricultural industries that 
the proposed amendments will not lessen the sanitary and phytosanitary 
standards of protection afforded to U.S. fruits and vegetables against 
infestation or disease from imports.
    A major responsibility of the U.S. Department of Agriculture (the 
Department) is preventing the introduction and spread of plant pests; 
indeed, the Plant Protection Act requires the Department to carry out 
this responsibility. APHIS is responsible for implementing the 
regulations that carry out the intent of the Plant Protection Act. As 
part of this responsibility, we ensure that our resources are adequate 
to carry out our day-to-day functions such as verifying that 
agricultural commodities meet U.S. phytosanitary entry requirements at 
ports of entry and working with our cooperators to conduct plant pest 
surveys and eradication programs when necessary.
    The amendments we are making to the regulations in this rule are 
not a reduction of sanitary and phytosanitary standards of protection. 
The amendments either strengthen or clarify the protection that the 
regulations provide. For instance, the amended packaging requirements 
for tomatoes from Spain, France, Morocco, and Chile will strengthen 
that protection by requiring that packaging safeguards remain intact 
upon arrival in the United States. Further, as discussed below, 
removing the criterion of ``without risk'' is intended to clarify the 
regulations to make them consistent with sound science.

Removing the ``Without Risk'' Criterion

    Several commenters disagreed with our proposal to remove the 
``without risk'' criterion from the regulations in Sec.  319.56-2(e)(3) 
and (e)(4) that specify that certain fruits and vegetables may be 
imported from a definite area or district if that area or district is 
free of all or certain injurious insects (referred to elsewhere as 
pest-free areas) and the importation of the fruits and vegetables can 
be authorized ``without risk.''
    One concern commenters expressed with the removal of the ``without 
risk'' criterion from the regulations is that this amendment will 
broaden APHIS' discretion without adequately ensuring that the 
phytosanitary security of our borders will be fully maintained. Several 
commenters were concerned that this amendment would allow trade or 
political issues to take precedence over the protection of U.S. 
agriculture.
    Because the removal of the ``without risk'' criterion from the 
regulations is merely an administrative action to remove an impractical 
criterion, its removal will not affect APHIS' discretion or our 
responsibility to guard against the introduction of pests. This change 
will not affect the purpose of our regulations--to protect the United 
States from the introduction or spread of plant pests--nor will it 
cause trade or political issues to take precedence over our 
responsibility. Further, the regulations in Sec.  319.56-6 provide 
APHIS with discretion to refuse entry, require treatment, or require 
destruction of shipments of fruits and vegetables. In this rule, we are 
strengthening this requirement by specifying that imported fruits and 
vegetables must be fully disclosed at the port of first arrival.
    Another concern raised by commenters was that commodities such as 
citrus from South Africa and Australia are currently being imported 
into the United States under the criterion of ``without risk'' and 
therefore our removal of that criterion would be misleading. We believe 
that this comment reinforces the need to remove the ``without risk'' 
criterion because it indicates that we need to clarify our 
regulations--no fresh agricultural commodity may be imported ``without 
risk.'' While the regulations prescribe inspection and, in some cases, 
as with citrus from South Africa and Australia, provide additional 
safeguards to reduce risk and guard against the introduction of 
quarantine pests, risk cannot be completely eliminated. The 
International Plant Protection Convention (IPPC) of the United Nations' 
Food and Agriculture Organization addresses this issue in the 
International Standards for Phytosanitary Measures (ISPM) No. 1, 
``Principles of Plant Quarantine as Related to International Trade.'' 
The specific principle for managed risk states that ``because some risk 
of the introduction of a quarantine pest always exists, countries shall 
agree to a policy of risk management when formulating phytosanitary 
measures.'' Thus the fact that some risk does exist is an 
internationally recognized principle.
    One commenter stated that the ``without risk'' language should not 
be changed because such a change is not specifically mandated in the 
Plant Protection Act and is contrary to Sec.  412 (7 U.S.C. 7712) of 
the Act. Instead, this commenter stated, retaining the ``without risk'' 
criterion grants the appropriate importance to APHIS' mandate to 
protect U.S. agriculture from quarantine pests that could cause 
substantial economic loss and other devastation to U.S. agriculture.
    While the Plant Protection Act did not expressly direct the 
Department to remove the ``without risk'' criterion from the 
regulations, we disagree that the removal of the language is contrary 
to the Plant Protection Act. In fact, in its findings accompanying the 
Plant Protection Act, Congress stated in Sec.  402(3) (7 U.S.C. 
7701(3)) that ``it is the responsibility of the Secretary to facilitate 
exports, imports, and interstate commerce in agricultural products and 
other commodities that pose a risk of harboring plant pests or noxious 
weeds in ways that will reduce, to the extent practicable, as 
determined by the Secretary, the risk of dissemination of plant pests 
or noxious weeds.'' Given that the Act directs the Secretary to reduce 
risk ``to the extent practicable''--and not to zero--we believe that 
removing the impractical and unrealistic ``without risk'' criterion 
from the regulations is consistent with the intent of Congress as 
expressed in the Plant Protection Act.
    One commenter stated that omitting a definition of acceptable risk 
would lead to a regulatory process that will be less based on sound 
science and that APHIS is seeking to avoid defining what ``without 
significant risk'' means for future importations. Further, commenters 
voiced concern that we are not replacing the ``without risk'' criterion 
with a standard that indicates an acceptable level of risk. It is 
APHIS' belief, which is based on sound science, that it is not 
appropriate to define an acceptable level of risk for all future 
imports. The risks associated with importations of fruits and 
vegetables vary depending upon the pest-commodity-origin complex. 
Further, the Plant Protection Act does not define the term ``acceptable 
level of risk'' or require the Secretary to define it, nor does the 
Plant Protection Act require the Secretary to prohibit imports unless 
he or she can conclude that there is zero risk of pest introduction. 
Instead, the Act gives the Secretary discretion to

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allow imports where he or she can conclude that the restrictions 
imposed will prevent the introduction of a pest. In deciding whether to 
allow imports, the Secretary weighs a variety of factors that could 
include whether the pest attacks a single commodity or multiple 
commodities, reliability of the data on which the risk of establishment 
projections are based, and the feasibility of proposed mitigation 
measures.
    The lack of a specific standard for an acceptable risk level will 
not lead to a regulatory process that will be less transparent or 
establish a system that is easily changed by outside parties as one 
commenter indicated. Removing the ``without risk'' criterion will not 
affect the rulemaking process. Any changes to the regulations will 
continue to be made using notice and comment rulemaking, which helps to 
ensure transparency. Further, the lack of a specific standard for an 
acceptable level of risk will not lead to a system that is easily 
changed by outside parties as we will continue to base our decisions on 
sound science.
    One commenter linked the failure to address the standard of 
phytosanitary security to additional costs (i.e., above those indicated 
in the proposed rule) associated with a Mediterranean fruit fly 
(Ceratitis capitata) (Medfly) outbreak. As stated in the proposed rule, 
we are removing the ``without risk'' criterion because it is impossible 
to satisfy. Therefore, no additional costs due to a Medfly outbreak 
would be associated with this change in the regulations.
    Another commenter stated that we should establish acceptable levels 
of risk based on the outcome of a case concerning the importation of 
citrus from Argentina, Harlan Land Company, et al. vs. United States 
Department of Agriculture, et al., Case CV-F-00-6106-REC/LJO 
(D. Ariz. Sept. 27, 2001). APHIS believes that the court's decision 
applies strictly to the rule at issue in that case and does not apply 
to this rule.
    One commenter stated that the ``without risk'' criterion protects 
the environment in that if a foreign pest outbreak occurred and the 
pest became established in the United States, the environment would be 
compromised due to pesticide spraying and other pest control methods. 
Although eradication of quarantine pests may require the use of 
pesticides and other control methods, removing the ``without risk'' 
criterion does not have the potential to harm the environment. The 
``without risk'' criterion is impractical, and its removal will not 
have any impact on the environment. In the event of an outbreak, APHIS 
would continue to prepare any necessary environmental documentation 
under the National Environmental Policy Act and the Endangered Species 
Act in advance of any pesticide use and other pest control methods.
    Two commenters voiced concern that we were proposing to replace the 
``without risk'' criterion with the IPPC standard pertaining to pest-
free areas, but this was not our intent. As stated in the proposed 
rule, we are removing the ``without risk'' criterion from Sec.  319-56-
2(e)(3) and (e)(4) because it is impossible to satisfy that 
requirement. We are not replacing the criterion with either a 
definition of acceptable risk or with the IPPC standard for pest-free 
areas. We proposed to adopt ISPM No. 4, ``Requirements for the 
establishment of pest free areas,'' as a replacement for the specific 
criteria for area freedom in Sec.  319.56-2(f). While ISPM No. 4 
specifies that one of the considerations in establishing a pest-free 
area is the ``level of phytosanitary security required as related to 
the assessed level of risk, according to the pest risk analysis 
conducted,'' this is not a deviation from our current practice of 
conducting a pest risk analysis for commodities not previously approved 
for importation.

Incorporation by Reference of Standard for Establishment of Pest-free 
Areas

    We proposed to replace the specific criteria in Sec.  319.56-2(f) 
for pest-free areas with the ISPM No. 4, ``Requirements for the 
establishment of pest-free areas,'' which would be incorporated by 
reference into the regulations.
    One commenter claimed our statement that ``[w]e believe that 
incorporating this standard by reference into our regulations would 
prevent the introduction of quarantine pests into the United States and 
provide requirements that are consistent with the IPPC'' is unrealistic 
because the standard could not completely eliminate the risk of 
introducing pests. The commenter is correct that our adoption of the 
standard by itself would not eliminate the risk of introducing pests. 
The standard describes requirements for the establishment and use of 
pest free areas as a risk management option for phytosanitary 
certification, and our intent was to communicate our belief that using 
the standard to determine the pest-free status of an area would provide 
us with an effective risk management tool that, more so than our 
existing criteria for the establishment of pest-free areas that have 
been found in Sec.  319.56-2(f), is consistent with internationally 
recognized standards.
    One commenter opposed the use of the IPPC standard because it 
appears that APHIS is proposing to supercede the Federal government's 
rulemaking authority with blanket approval for the IPPC to determine 
U.S. sanitary and phytosanitary standards. According to the commenter, 
this change could result in deferring the establishment of risk 
criteria to an international body, which could be arbitrary and 
capricious and lack transparency and accountability, as well as be an 
abuse of discretion. Another commenter who disagreed with using the 
IPPC standard objected on the grounds that we would be abdicating our 
responsibilities to an international group that would not always be 
controlled by the best science.
    In making this amendment to the regulations, we are not abdicating 
our rulemaking authority or responsibilities to the IPPC, nor are we 
deferring our establishment of risk criteria to that body. Any decision 
made regarding the pest-free status of an area in the context of our 
import requirements will continue to be made by APHIS, just as has been 
the case under the provisions of Sec.  319.56-2(f) that ISPM No. 4 will 
replace. It is important to note that incorporating ISPM No. 4 by 
reference has the effect of making that standard, in its current form 
(i.e., the February 1996 version made available for review with the 
proposed rule), part of our own regulations. Because of that, we would 
have to initiate rulemaking to update the incorporation by reference--
thus giving the public an opportunity to review and comment upon any 
changes that had been made to the standard--before any future changes 
that might be made by the IPPC to that 1996 version of ISPM No. 4 could 
become part of our regulations.
    With respect to the issue of transparency raised by one of the 
commenters, we believe that our incorporation by reference of ISPM No. 
4 will make our regulations more, and not less, transparent. The 
criteria in Sec.  319.56-2(f) that we have used for recognizing pest-
free areas make reference to surveys performed in accordance with 
requirements approved by the Administrator and phytosanitary 
requirements deemed by the Administrator to be at least equivalent to 
our own, but do not provide specific details regarding those survey and 
phytosanitary requirements. ISPM No. 4, on the other hand, provides 
both general and specific requirements for determination of pest-free 
areas, establishment and maintenance of pest-free areas, systems to 
establish freedom, phytosanitary measures to maintain freedom, checks 
to verify freedom has been maintained, and documentation and review.

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    Another commenter partly supported the reference to the IPPC 
standard but was concerned that stating that a country's program meets 
the requirements of the standard for a pest-free area is not entirely 
transparent. The standards are written broadly, and measures such as ad 
hoc monitoring, general surveillance, and specific surveillance vary 
from situation to situation. Only measures specifically applied to the 
identified pest risk should be used to support a statement that the 
appropriate level of protection has been attained.
    We agree that the standards used to determine whether an area is 
pest free will vary. When we evaluate whether an area is pest free, we 
consider and apply the appropriate measures. We believe that the 
survey, data, research, pest risk assessment, and other elements that 
must be addressed under ISPM No. 4, which must be approved in each 
particular case by APHIS and which will be made available to the public 
for review before we make a final determination as to an area's pest 
free status, will provide for a transparent decisionmaking process and 
will ensure that measures specifically applied to the identified pest 
risks will be used to support our determinations.
    Another concern expressed by a commenter was that incorporating 
this standard by reference would result in surrendering the survey for 
pests to the country of origin. Incorporating the IPPC standard for 
pest-free areas into the regulations will not affect the way that we 
approve pest surveys in the country of origin. Agricultural authorities 
in the country where the area is located will continue to conduct the 
surveys as they have done in the past, and the surveys will continue to 
be performed according to procedures approved by APHIS. Given that we 
will continue to approve the survey methodology and resulting data 
prior to determining whether an area is indeed pest free, APHIS' role 
in ensuring that the surveys are valid and meet the requirements of the 
regulations will not be affected by this amendment to the regulations.
    One commenter voiced concern that adopting the IPPC standard could 
be a prelude to establishing low prevalence pest areas that would be 
totally governed by the IPPC. We will not use this standard to 
establish low prevalence pest areas, let alone such areas that would be 
totally governed by the IPPC. The scope of ISPM No. 4 does not provide 
for the recognition of low prevalence pest areas; it is limited to the 
requirements for pest-free areas, which the standard defines, in part, 
as ``an area in which a specific pest does not occur. * * *
    One commenter suggested that we change the proposed language 
incorporating the IPPC standard by reference so that pest-free areas 
would not have to be added to our regulations through rulemaking before 
imports could be allowed from such areas. Specifically, he recommended 
that the Administrator of APHIS authorize administratively the 
importation of a fruit or vegetable under Sec.  319.56-2(e)(3) or (4), 
whenever he or she determines that the fruit or vegetable is being 
imported from an area that satisfies the requirements of ISPM No. 4 for 
recognition as a pest-free area with respect to the pests of concern 
for that fruit or vegetable. We are considering the suggestion, and if 
we determine that making that change would be appropriate, we will 
propose it in a separate document published in the Federal Register for 
comment.
    In this final rule, we are not making any changes based on the 
comments received on incorporation by reference of ISPM No. 4. However, 
we are making two editorial changes. First, we are clarifying that the 
Administrator must determine that the area is free of the pest or pests 
in accordance with the criteria for establishing freedom found in ISPM 
No. 4. In the proposed rule, we stated that ISPM specifies requirements 
for an area to meet; however, criteria are actually specified. Second, 
we are retaining the paragraph in the regulations that states that 
``[w]hen used to authorize importation under Sec.  319.56-2(e)(3), the 
criteria must be applied to all injurious insects that attack the fruit 
or vegetable; when used to authorize importation under Sec.  319.56-
2(e)(4), the criteria must be applied to those particular injurious 
insects from which the area or district is to be considered free.'' As 
proposed, that paragraph would have been removed, but we believe 
retaining that paragraph is necessary to specify how the criteria are 
applied to a definite area or district in the country of origin that is 
free from all injurious insects that attack the fruit or vegetable 
(Sec.  319.56-2(e)(3)) or is free from certain injurious insects that 
attack the fruit or vegetable (Sec.  319.56-2(e)(4)).

Rambutan From Central America and Mexico

    We proposed to amend Sec.  319.56-2t to allow the importation of 
rambutan from Central America and Mexico. One commenter supported the 
importation of rambutan from Central American countries but questioned 
whether cold treatment or other treatment of rambutan was required. If 
treatment is required, the commenter stated, electrification, 
irradiation, vapor, hot water, or fumigation treatments would be 
preferable to cold treatment. Rambutan from Belize, Costa Rica, El 
Salvador, Guatemala, Honduras, Mexico, Nicaragua, and Panama will be 
eligible to be imported under Sec.  319.56-2t, which lists fruits and 
vegetables for which treatment is not a condition of entry. However, 
under Sec.  319.56-6, rambutan, like any fruit or vegetable, may be 
subject to treatment if the inspector finds a pest of concern during 
inspection at the port of first arrival and determines that treatment 
is necessary. If a quarantine pest were to be found, an inspector would 
determine what action to take, including treatment, reexportation, or 
destruction of the shipment.
    Another commenter requested more studies to support the importation 
of rambutan from Central America and Mexico. The commenter stated that 
fruit cutting for two seasons and the reliance on interceptions in 
passenger baggage and other information on which APHIS' decision was 
based are insufficient evidence that rambutan is not a fruit fly host 
in Central America and Mexico.
    We believe that the evidence presented in the pest risk assessment 
is sufficient to support our decision to allow the importation of 
rambutan from Belize, Costa Rica, El Salvador, Guatemala, Honduras, 
Mexico, Nicaragua, and Panama. The research indicates that fruit flies 
that occur in Central America and Mexico are not likely to follow the 
pathway on undamaged rambutan fruit, and they are not reported as pests 
of rambutan in these regions. In the field study in which 47,188 fruits 
of 10 varieties were cut over two seasons, no Medfly was found. Another 
study that was conducted under laboratory conditions indicates that the 
Medfly was able to oviposit, but with very low pupation rate, in 
damaged fruit.\1\ Therefore, we are requiring that the country of 
origin's national plant protection organization (NPPO) declare on the 
phytosanitary certificate that they have supervised the removal of all 
damaged fruit from the shipment prior to export to the United States. 
An additional study in Hawaii, which is not cited in the pest risk 
assessment, showed that Medfly could not successfully oviposit on 
rambutan

[[Page 37908]]

under forced infestation experiments under controlled laboratory 
conditions.\2\ Another consideration is that there is no valid report 
or other evidence that this fruit is a host of either Medfly or fruit 
flies of the genus Anastrepha under field conditions.
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    \1\ Vasques, L.A. 2000. Evaluation of rambutan Nephelium 
lappaceum L. as a host of three species of fruit flies: Ceratitis 
capita Weidemann, Anastrepha ludens Loew, and Anastrepha obliqua 
Macquart, in Honduras Department of Plant Protection, Honduran 
Foundation Agriculture Research, FHIA, report submitted to USDA, 
APHIS.
    \2\ Phillips, Thomas W. 1998. Quarantine Hot Air Treatment for 
Hawaiian-Grown Rambutan, Nephelium lappaceum, To Disinfest the Fruit 
Flies Bactrocera dorsalis and Ceratitis capitata, USDA, Agricultural 
Research Service, report submitted to USDA, APHIS.
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    One commenter supported the importation of rambutan as well as 
other commodities from Honduras. He reported that Honduras would export 
approximately 1,500 metric tons of rambutan from the estimated 250 
hectares of rambutan that will be in production in 2003. He also 
reported that there are more than 125 growers of rambutan in Honduras. 
We will include this information in the final regulatory flexibility 
analysis for this rule.

Fennel From El Salvador, Guatemala, and Nicaragua

    We proposed to amend Sec.  319.56-2t to allow the importation of 
fennel from El Salvador, Guatemala, and Nicaragua. Commenters indicated 
that imports of fennel would harm U.S. fennel producers. The commenters 
reported that fennel is grown in California and Arizona in sufficient 
quantities to meet the demand for commercial fennel. Commenters also 
objected to the use of fennel seed data in the economic analysis 
instead of data for fennel leaves and stems and provided production 
data for two of the four California counties in which they stated 
fennel is produced.
    We have included information provided by the commenters regarding 
domestic fennel production in this rule's final regulatory flexibility 
analysis. We were unable to find supporting or additional data, which 
could be because this commodity is a specialty crop. We have removed 
the data on imports of fennel seed from El Salvador from the final 
regulatory flexibility analysis because they do not apply to the 
importation of fennel leaves and stems. We also address effects on 
domestic producers in the final regulatory flexibility analysis.
    Several commenters objected to the importation of fennel into the 
United States from El Salvador, Guatemala, Honduras, and Nicaragua 
based on their dissatisfaction with the pest risk assessment. The 
commenters voiced concern that the pest risk assessment contained 
insufficient detail concerning research conducted to identify all 
potential pests. Commenters questioned whether Agrotis segetum is 
limited only to Honduras as reported in the pest risk assessment.
    We would like to point out that while the pest risk assessment was 
conducted to examine the pest risk associated with the importation of 
fennel from El Salvador, Guatemala, Honduras, and Nicaragua, we 
proposed to allow the importation of fennel from only three of those 
countries--El Salvador, Guatemala, and Nicaragua.
    The research conducted for the pest risk assessment was complete 
and thorough. We conducted an exhaustive search of literature and 
reviewed our historical plant pest database and interception 
information. In addition to the literature sources cited in the pest 
risk assessment, we consulted more than 135 other sources. One of those 
sources, the Government of Honduras, indicated that A. segetum is 
present in Honduras. A. segetum is a quarantine pest that the pest risk 
assessment identified as likely to follow the pathway. After 
considering the pest risk assessment and available mitigation measures 
for that quarantine pest, we determined that fennel from Honduras could 
not be proposed for importation into the United States. However, A. 
segetum was not listed in the sources consulted as occurring in El 
Salvador, Guatemala, or Nicaragua.
    Some of the commenters voiced concerns that an interception from 
Guatemala of Lepidoptera species was not analyzed, referring to the 
note in the pest risk assessment that the absence of taxonomic 
information at the species level makes biological evaluations 
difficult. The interception of the Lepidoptera species was not further 
analyzed in the pest risk assessment as it was a single occurrence that 
was intercepted in fennel from Guatemala in 1996 with an inconclusive 
determination of quarantine status.
    Several commenters were concerned about pests that were identified 
in the pest risk assessment as likely to follow the pathway. Table 2 of 
the pest risk assessment lists pests of fennel in El Salvador, 
Guatemala, Honduras, and Nicaragua that have been reported in 
scientific and regulatory literature. While table 2 lists 12 pests that 
are known to occur in these 4 Central American countries, only 1 of the 
12 is a quarantine pest--A. segetum. Even though 11 of the pests were 
identified as likely to follow the pathway, we do not consider them 
quarantine pests because they are established in the United States. 
Under Sec.  319.56-6, all imported fruits and vegetables, as a 
condition of entry into the United States, must be inspected; they are 
also subject to disinfection at the port of first arrival if an 
inspector requires it. Section 319.56-6 also provides that any shipment 
of fruits and vegetables may be refused entry if the shipment is so 
infested with plant pests that an inspector determines that it cannot 
be cleaned or treated.
    Several commenters recommended that the exporting country must 
prove that it has a system in place to ensure that pests are not 
transported in fennel shipments, rather than relying on APHIS 
inspections at the port of entry, because they are concerned that there 
are no indications that inspections are sufficient to prevent an 
infested shipment from entering the United States.
    APHIS successfully uses inspection at the point of entry as the 
only phytosanitary measure needed to mitigate the pest risk posed by 
several commodities from various countries. Inspectors are trained to 
find pests in agricultural commodities. In 2002, APHIS inspectors 
intercepted 68,556 quarantine pests, and it is estimated that an equal 
number of nonquarantine pests were intercepted. As discussed above, no 
quarantine pests were identified in the pest risk assessment as 
occurring in fennel from El Salvador, Guatemala, and Nicaragua. 
Therefore, inspection at the port of entry mitigates the pest risk 
posed by the importation of fennel from El Salvador, Guatemala, and 
Nicaragua.
    Several commenters expressed concern that the pest risk assessment 
did not address the impact on U.S. growers should any pest be 
introduced. The pest risk assessment is consistent with the guidance 
provided by the North American Plant Protection Organization (NAPPO), 
the IPPC, and APHIS' Guidelines for Pathway-Initiated Pest Risk 
Assessments. The pest risk assessment examined pest risk associated 
with the importation into the United States of fresh leaves and stems 
of fennel from El Salvador, Guatemala, Honduras, and Nicaragua. Risk of 
introduction of pests was evaluated in qualitative terms of high, 
medium, and low. One of the risk elements that we considered in 
determining the consequences of introduction for A. segetum was the 
economic impact. As shown in table 3 of the pest risk assessment, we 
rated the economic impact of such an introduction as high.

Peppers From Israel

    We proposed to amend Sec.  319.56-2u to require that insect-proof 
containers remain intact during transit and be intact upon arrival in 
the United States. We also proposed an alternative packaging method of 
covering non-insect-proof boxes with insect-proof

[[Page 37909]]

mesh or plastic tarpaulins that would then be placed inside a shipping 
container. We also proposed that, if the peppers were shipped through 
an area that was not a fruit-fly free area, the Israeli national plant 
protection organization would have to secure the shipping containers 
with a numbered seal, which would be required to remain intact until 
arrival in the United States.
    One commenter objected to the proposed requirement that shipping 
containers remain sealed and intact until peppers from Israel arrive in 
the United States. The commenter relayed that the shipping containers 
transit Europe, where the shipping containers are opened to rearrange 
the boxes during transport to the United States. Thus the proposed seal 
on shipping containers transiting fruit-fly areas would not remain 
intact during transit from Israel to the United States.
    The purpose of the packaging safeguards is to ensure that peppers 
shipped from Israel to the United States are protected from pests 
during all phases of their movement from the approved screenhouses. Our 
proposed requirements that the peppers be packed in either individual 
insect-proof cartons or in non-insect-proof cartons that are covered by 
insect-proof mesh or plastic tarpaulins that must arrive intact in the 
United States will remain unchanged. We are, however, removing the 
requirement that the shipping containers be sealed. Because the 
shipping containers are opened and the insect-proof cartons of peppers 
within the shipping container are transferred to another shipping 
container, we agree that the proposed requirements that shipping 
containers remain sealed at all times during the movement of peppers to 
the United States and that the seal be intact upon the arrival of the 
peppers in the United States are not feasible. Further, we believe that 
the certification on the phytosanitary certificate that the 
requirements of the regulations have been met, coupled with the 
requirement that the insect-proof packaging remain intact until the 
arrival of the peppers in the United States, will be adequate in 
protecting shipments of peppers from Israel from the infestation by 
pests during transport.

Yellow Pitaya From Colombia

    We proposed to amend Sec.  319.56-2x to allow the importation of 
yellow pitaya from Colombia. We specified that yellow pitaya would have 
to undergo vapor heat treatment for the Medfly and the South American 
fruit fly, Anastrepha fraterculus, in accordance with the Plant 
Protection and Quarantine (PPQ) Treatment Manual, which is incorporated 
by reference in 7 CFR 300.1.
    We received four comments opposing the importation of yellow pitaya 
from Colombia into the United States. The commenters stated that the 
pest risk assessment is inadequate because it does not thoroughly 
evaluate pests of concern. Commenters indicated that the pest risk 
assessment should consider pests of the stem and root in addition to 
pests of the fruit because portions of the stem and root would 
accompany the fruit during shipment. Specific pests of concern provided 
in the comments are Fusarium and Droxlera spp. One commenter was 
concerned that the pest risk assessment overlooked a biotype of 
Fusarium oxysporum that is in Colombia but not present in the United 
States and that could affect U.S.-grown pitaya fruit as well as other 
cactus species.
    We did not consider pests of the stem and root in the pest risk 
assessment because stem and root portions will not accompany the yellow 
pitaya fruit during shipment from Colombia to the United States. In 
Colombia, commercially produced fruit of yellow pitaya are harvested 
and shipped without attached stem or root portions. We conducted a 
thorough search of worldwide literature and did not find mention of 
``Droxlera spp.'' or any published reports of a biotype of F. oxysporum 
that is present in Colombia but not present in the United States. As 
indicated in the pest risk assessment, F. oxysporum is a pathogen of 
yellow pitaya in Colombia, but because it is also present in the United 
States and not under official control, it is not considered a 
quarantine pest.
    Commenters noted the drastic decline in surface area planted to 
pitaya in Colombia between 1990 and 1996 reported in the document 
``Vapor heat treatment for pitaya fruit infested with eggs and larvae 
of Mediterranean fruit fly.'' Colombia reported 1,016.95 ha of pitaya 
in 1990, and in 1996, there was only 255.4 ha. They stated that Dr. 
Yosef Mizrahi of Israel reported that a strain of Fusarium oxysporum as 
well as another fruit fungus (which commenters stated might be Droxlera 
spp.) were responsible for this loss of production area. They also 
stated that Dr. Mizrahi has advised all U.S. researchers and producers 
of pitaya to not import any plant material of pitaya from Colombia to 
the United States for fear of transmitting these diseases.
    We disagree that the decline in yellow pitaya was attributed to 
Fusarium oxysporum or another fruit fungus. The decline in acreage 
planted to yellow pitaya in Colombia from 1990-1996 is directly related 
to the cessation of shipments of commercial yellow pitaya fruit from 
Colombia to Japan. In 1989, Medfly was found to be associated with 
Colombian yellow pitaya fruit and exports to Japan were halted.\3\ In 
the late 1990s, Japan and Colombia cooperated in the development of a 
successful vapor heat treatment for fruit flies in yellow pitaya. In 
2000, Colombia resumed shipment of yellow pitaya fruit to Japan and 
successfully shipped 14.2 tons of vapor-heat-treated fruit to Japan 
between February and April 2000.
---------------------------------------------------------------------------

    \3\ ACCI. 2002. Cooperation con Japan: Pitahaya de Exportacion. 
Reportajes Agencia Colombiana de Cooperacion International (ACCI). 
Nota publicada en el boletin No. 7-Julio de 2000.
---------------------------------------------------------------------------

    One commenter pointed out that, according to the pest risk 
assessment, action may be taken and further risk assessment may be 
conducted for certain pests if those pests are found in shipments of 
yellow pitaya. The commenter stated that APHIS must take the 
appropriate steps prior to allowing the importation rather than after 
the shipment arrives in the United States. Another concern was that 
some of the pests that were not further analyzed in the pest risk 
assessment were eliminated from consideration for reasons other than 
research evidence.
    Shipments are subject to inspection at the port of entry and will 
be denied entry if pests of concern are intercepted. We do investigate 
pest problems associated with commodities in their countries of origin 
during our pest risk assessments. Our current method of performing pest 
risk assessments is to do an exhaustive search of literature and review 
our historical plant pest database and interception information. When 
available, we also use information from other sources, and occasionally 
conduct onsite investigations in proposed export areas. The pest risk 
assessments are science-based and largely dependent upon literature on 
plant pest problems in countries of origin. This literature is 
primarily investigative findings published by scientists. Our 
experience has shown that if a pest causes damage to an economic crop, 
the scientific community investigates the pest's biology and extent of 
pest damage in prescribing remedial actions.
    Another concern raised by commenters was that APHIS' approval for 
the importation of yellow pitaya from Colombia would be based on the 
mitigation provided by a vapor heat treatment for Medfly, but that the 
pest risk assessment does not address the protection mechanisms against 
the other pests. In addition, some commenters stated that the pest risk 
assessment is

[[Page 37910]]

not definitive enough when stating that the vapor heat treatment may 
have mitigating effects on surface pests. One commenter argued that the 
use of the words ``may,'' ``likely,'' and ``unlikely'' in the pest risk 
assessment demonstrates a lack of a thorough risk assessment and that 
stating that it is ``very unlikely'' for a pest to remain with the 
imported fruit is unacceptable.
    Our pest risk assessment was conducted in accordance with NAPPO and 
IPPC guidelines, which are referenced in our pest risk assessment. ISPM 
No. 11, ``Guidelines for Pest Risk Analysis for Quarantine Pests,'' 
describes three stages of pest risk analysis: Initiation, risk 
assessment, and risk management. The pest risk assessment for yellow 
pitaya from Colombia satisfies the requirements for the first two 
stages, initiation and risk assessment, by determining if a pest is a 
quarantine pest and evaluating the risk associated with its 
introduction via pitaya imported from Colombia. The pest risk 
assessment is qualitative, where risk is expressed in descriptive terms 
(high, medium, and low), rather than quantitative, where risk would be 
expressed in probabilities or frequencies. In addition to reflecting a 
qualitative risk assessment, our use of terms, such as ``may'' and 
``likely'' reflects the fact that we cannot completely eliminate risk. 
Using more absolute terms, such as ``will'' and ``definitely,'' would 
be inaccurate. The pest risk management stage is not part of the pest 
risk assessment document that we prepared.
    Pest risk management involves the process of reducing the risk of 
introduction of a quarantine pest and leads to a decision of whether to 
allow the importation of the commodity, and under what conditions. The 
conditions for pest risk management for imports of yellow pitaya fruit 
from Colombia were provided in the proposed rule. The risk management 
approach used to kill the internal feeders--Anastrepha fraterculus and 
the Medfly--is the vapor heat treatment. The risk management approach 
for external pests is inspection. We believe that the risks will be 
managed through inspection and treatment. In addition, in accordance 
with Sec.  319.56-6, an inspector may refuse entry of a shipment that 
is contaminated with plant pests, soil, or other contaminants.
    One commenter expressed concern that pesticides used on the pitaya 
crop in Colombia would not be allowed on similar fruit in the United 
States. The U.S. Food and Drug Administration (FDA) samples and tests 
imported fruits and vegetables for pesticide residues. If residue from 
a pesticide that is not approved in the United States is found, the FDA 
will deny the shipment's entry into the United States.
    The commenter also disagreed with the statement in the pest risk 
assessment that the pesticides used on pitaya in Colombia would 
mitigate the pest risks. He questioned whether evidence exists that 
Colombia would administer the pesticides to all shipments of pitaya.
    Colombia is a major producer of yellow pitaya and successfully 
exports fresh yellow pitaya fruit to dozens of countries. While any 
pesticides applied may help manage the risk of external pests, the risk 
management approach used for external pests is inspection. As discussed 
above, however, an inspector may refuse entry of a shipment if it is 
infested.

Citrus From Australia

    We proposed to amend Sec.  319.56-2v to add specific geographic 
areas to that section's list of areas in Australia from which citrus 
may be imported. One commenter recommended that we distinguish the 
Parish of Onley in the Shire of Mildura, Victoria, from the geographic 
subdivisions called ``hundreds.'' As the Parish of Onley is not one of 
the hundreds, we have changed Sec.  319.56-2v(a)(1) in this final rule 
to distinguish the Parish of Onley from the listed hundreds. Data were 
submitted showing that the Parish of Onley and the additional hundreds 
meet the criteria for pest-free areas.
    Another commenter stated that APHIS is proposing to allow new 
Australian production areas to export citrus to the United States but 
does not define its process for overseeing the continued freedom of 
those production areas from quarantine pests and diseases. Before a 
country conducts a survey, APHIS approves the survey protocol used to 
determine pest-free status. Once a free area is established, APHIS 
verifies that the area remains pest free. In addition to notification 
from the country concerning the maintenance of pest-free areas, we have 
several methods to verify that an area remains pest free. APHIS 
personnel are stationed overseas to evaluate the effectiveness of the 
survey and regulatory programs that the country of origin uses to 
maintain the pest-free areas. Another method is through agriculture 
inspection at the port of entry, as any findings of quarantine pests 
could indicate that an area is no longer a pest-free area. In the case 
of citrus from Australia, the regulations provide that in the event 
that surveys detect quarantine pests in the designated free areas, the 
citrus could be cold treated, if a treatment is available for the pest 
of concern, and remain eligible for importation into the United States.
    The commenter correctly indicated that we do not define the process 
or our role in verifying the status of pest-free areas. Therefore, we 
are amending Sec.  319.56-2(f) by stating that APHIS must approve the 
survey protocol used to determine pest-free status, and pest-free areas 
are subject to audit by APHIS to verify their status.
    A commenter stated that APHIS is rewarding Australian producers 
with increased U.S. market access at the same time that Australia is 
dramatically restricting American growers from exporting to Australia. 
Our proposal and decision to allow imports of citrus from additional 
areas in Australia were based on data that indicated that the areas are 
free of destructive fruit flies.
    One commenter correctly indicated that the value of citrus that 
Australia exported was underreported in the initial regulatory 
flexibility analysis at $37,000. We will adjust the final regulatory 
flexibility analysis to show $108.7 million as the value of Australian 
citrus exports for 2001.

Tomatoes

    We proposed to amend Sec.  319.56-2dd to allow the importation of 
tomatoes from Australia. We specified certain phytosanitary conditions 
under which the importation would be allowed to manage the risks 
presented by several species of fruit flies, loopers, worms, and 
caterpillars. One commenter recommended specific changes to these 
phytosanitary requirements.
    First, the commenter recommended removing the requirement that 
McPhail traps be used and replacing that requirement with ``fruit fly 
traps of an approved type'' because specifying the type of fruit-fly 
trap is too restrictive. In response to this comment, we are removing 
the specification in Sec.  319.56-2dd(e)(2) that the fruit-fly traps be 
McPhail traps and specifying instead that the traps be APHIS approved. 
As long as the regulations require the use of an APHIS-approved fruit-
fly trap, phytosanitary security will not be affected.
    Second, the commenter recommended rephrasing the wording used for 
the rate that fruit-fly traps must be set. The proposed rule stated 
that ``in all areas outside of the greenhouse and within 8 kilometers 
of the greenhouse, fruit-fly traps must be placed at the rate of at 
least four per square kilometer.'' The commenter reported that the 
current trapping grid in production areas in the fruit fly exclusion 
zone is based on a 1 km grid with a trap set at each corner

[[Page 37911]]

and recommended changing the wording concerning the placement of the 
traps to say ``placed on a 1 kilometer grid.'' Because this change in 
trap placement would not compromise the detection of any fruit flies in 
the area and will more accurately reflect trap placement, we are making 
this change in Sec.  319.56-2dd(e)(2).
    Third, the commenter recommended that the proposed requirement 
stating that ``outside of a registered greenhouse, if one fruit fly of 
any type is found within 2 kilometers, trap density and frequency of 
trap inspection must be increased to detect a reproducing colony'' be 
changed to ``outside of a registered greenhouse, if one fruit fly of 
the types specified in this notice is found within 2 kilometers of the 
facility, * * * '' Because this change would not affect the protection 
that the regulations provide, we have changed the requirement in Sec.  
319.56-2dd(e)(4) to state that the detection of one fruit fly of the 
species specified in Sec.  319.56-2dd(e) would trigger an increase in 
trap density and inspections. In addition, we have made editorial 
changes to clarify that the threshold for cancellation of exports is 
the capture of two Medflies or three of the same species of Bactrocera 
within 2 kilometers of each other and within 30 days.
    Finally, the commenter suggested including certain specifics in the 
operational workplan between the country of origin and the United 
States and excluding that information from the regulations. For 
example, the proposed rule would require that ``Capture of two Medflies 
or three of the same species of Bactrocera within 1 month will result 
in the cancellation of exports from all registered greenhouses within 2 
kilometers of the find until the source of the infestation is 
determined and the fruit fly infestation is eradicated.'' The commenter 
stated that the distance between detections was based on detections 
within a 2 kilometer radius of the facility, but he recommended that we 
omit the specifics on the number of flies, distance between detections, 
and timeframe from the regulations and include that information in the 
operational workplan. We are not making any changes in response to this 
suggestion. We believe the specifics provide transparency in the 
regulations. These requirements, including that exports will be 
canceled from all registered greenhouses within 2 kilometers of the 
find, are consistent with our import requirements for tomatoes from 
Spain in Sec.  319.56.2dd(a).
    For the same reasons as discussed above under the heading ``Peppers 
from Israel,'' we are removing the proposed requirement for the sealing 
of shipping containers for tomatoes from Spain, France, Morocco and 
Western Sahara, and Australia (Sec.  319.56-2dd(a), (b), (c), and (e), 
respectively).
    Another commenter requested that we review the use of ``pink'' and 
``red'' to describe the ripeness of tomatoes in general. He contended 
that these terms are obsolete and potentially harmful with production 
of heirloom tomatoes of many different colors. While the regulations 
concerning the importations of tomatoes from Australia do not require 
that they be pink or red, the regulations do include this provision for 
certain other countries. If the pink or red criterion should become an 
issue with those importations, we will evaluate the adequacy of the 
pink or red criterion. However, at this time, we are not making any 
changes in response to this comment.

Persimmons From the Republic of Korea

    We proposed to allow the importation of persimmons from the 
Republic of Korea under the conditions set forth in Sec.  319.56-2kk. 
One commenter correctly stated that the proposed shipping restriction 
that would prohibit the entry of persimmons from the Republic of Korea 
into Hawaii, Puerto Rico, the Virgin Islands, and Guam would be 
unnecessary because the pest risk assessment was conducted for all 
areas of the United States. In addition, the commenter noted that 
persimmons from the Republic of Korea are currently imported into Guam. 
In response to this comment, we are removing the shipping restriction 
for persimmons from the Republic of Korea.
    Another commenter objected to the importation of persimmons from 
the Republic of Korea, stating that APHIS is proposing an inadequate 
method of enforcement for ensuring that quarantine pests are controlled 
within production areas. Further, the commenter argued that 
establishing the orchard, which could be defined in many different 
ways, as the unit of reference for inspection and refusal of imports 
has no scientific justification.
    We are allowing the importation of persimmons from the Republic of 
Korea into the United States under, among other things, the condition 
that the orchard where they were grown was inspected and found free of 
quarantine pests by the Republic of Korea's NPPO. After harvesting and 
before packaging a shipment of persimmons, the Republic of Korea's NPPO 
must inspect the shipment for quarantine pests, and if no pests are 
found, they must declare that on a phytosanitary certificate.
    When the shipment enters the United States, it will be inspected 
again by a U.S. inspector who will decide whether to allow or refuse 
entry of the shipment. Costs associated with refusal of a shipment 
would be borne by the exporter; therefore, the exporter has added 
incentive to comply with the regulations. Traceback to an orchard would 
be accomplished through records kept by the Republic of Korea's NPPO. 
We regulate at the orchard level in many of our commodity import 
regulations, because doing so provides us with a meaningful way to 
eliminate products from the import chain when we identify problems; 
i.e., we can limit enforcement actions to individual production sites 
rather than to entire growing areas. Based on our experience with 
mitigating pest risks and our success with inspection and enforcement, 
we believe that the conditions described above are adequate.
    However, in response to this comment, we are making changes to 
clarify the regulations. In Sec.  319.56-1, we are adding a definition 
of the term ``place of production'' that is consistent with the current 
IPPC definition. The definition for the term ``place of production'' is 
``any premises or collection of fields operated as a single production 
or farming unit. This may include a production site that is separately 
managed for phytosanitary purposes.'' Because the definition of the 
term ``place of production'' includes the term ``field'' and 
``production site'', we are also including definitions of those terms. 
The term ``field'' is defined using the IPPC definition of ``a plot of 
land with defined boundaries within a place of production on which a 
commodity is grown.'' The term ``production site'' is defined as ``a 
defined portion of a place of production utilized for the production of 
a commodity that is managed separately for phytosanitary purposes. This 
could include the entire place of production or portions of it. 
Examples of portions of places of production are a defined orchard, 
grove, field, or premises.'' In Sec.  319.56-2kk, which concerns 
persimmons from the Republic of Korea, we are replacing the first 
occurrence of the word ``orchard'' with ``production site, which is an 
orchard.''

Cold Treatment

    One commenter voiced concerns about added provisions to allow the 
entry of cold treated commodities when failures of this treatment 
protocol have yet to be completely addressed. This commenter stated 
that (1) although the cold treatment for Medfly has been lengthened, 
the suspected operational

[[Page 37912]]

failure has not been reviewed; (2) at least one live larva of false 
codling moth was intercepted last year from cold treated citrus from 
South Africa; and (3) there has been no overall review of the efficacy 
of cold treatment protocols in light of the interceptions of live 
insects following treatment.
    In general, when pests are intercepted following treatment, APHIS 
investigates possible causes and responds appropriately. In the 
specific case of multiple live Medfly interceptions in clementines from 
Spain, APHIS halted clementine imports until we evaluated the 
situation, and the Secretary determined that it was no longer necessary 
to prohibit the importation or interstate movement of the fruits if a 
lengthened cold treatment was applied, along with other safeguards. In 
conducting our evaluation, we reviewed the cold treatment protocols for 
Medfly. APHIS' review of the cold treatment applied to the clementine 
shipments that contained live Medfly larvae yielded no evidence that 
the treatment was improperly applied. In an interim rule (67 FR 63529-
63536, Docket No. 02-071-1, effective and published October 15, 2002), 
we extended the duration of cold treatment for Medfly and added a 
requirement that inspectors will sample and cut fruit from each 
shipment cold treated for Medfly to monitor the effectiveness of the 
cold treatment.
    In response to interceptions of the false codling moth from cold 
treated citrus in South Africa, we have taken three actions to help 
ensure fruit infested with false codling moth do not enter the United 
States with cold treated fruit. First, fruit entering through 
preclearance programs will be rejected before treatment if false 
codling moth is found. Second, additional fruit cutting is being 
instituted in the preclearance program. Third, at the ports of entry, 
fruit cold treated for false codling moth has been moved to the highest 
risk level--the number of fruit being cut on arrival is 150 per 
container or 1,500 for bulk shipments.

Permits

    In Sec.  319.56-3, we proposed to add provisions that oral permits 
may be issued in cases where no other importations are considered and 
the commodity is admissible with only inspection. One commenter 
questioned the ability to conduct tracebacks and keep records under the 
proposed oral permit provision. Specifically, the commenter asked how 
the oral request is documented, what form an oral request needs to be 
in, for what purposes does the oral request need to be made, and if an 
oral request can be denied, what would be the reasons for denial. The 
commenter stated that APHIS is also easing the burden upon importers in 
obtaining these permits by allowing oral permits to be satisfactory in 
securing inspection.
    Allowing oral permits is a standard practice for noncommercial 
fruits or vegetables at the U.S. ports of entry. It is APHIS' policy to 
allow oral permits on a daily basis for fruits and vegetables brought 
in through passenger baggage. For these noncommercial shipments, no 
application is necessary. While oral permits are also issued to 
importers who are first-time importers of commercial shipments, the 
importers must apply in writing, which provides documentation of the 
importation as well as proof that the importers were informed of the 
requirements. Since this is a current practice, we do not view the 
amendments to the regulations as easing the burden upon importers. 
Instead, the amendments to the permit regulations will clarify and 
update our procedures.
    As is the case with a fruit or vegetable that is imported with a 
written or electronic permit under Sec.  319.56-6, entry of any fruit 
or vegetable that is being considered for importation under an oral 
permit would be denied if the inspector finds evidence of a pest or 
disease. The issuance of oral permits will not influence the 
requirement for a permit. Regardless of the form--oral, written, or 
electronic--a permit is required. Written or electronic permits are 
required from importers who routinely ship commercial products to the 
United States.
    Based on the questions posed by the commenter, we are making 
several changes to further clarify the permit provisions. In the 
definitions in Sec.  319.56-1 and throughout Sec.  319.56-3, we have 
changed ``specific permit'' to specific written permit. Under the 
definition for specific written permit, we have specified that a 
specific written permit may also be issued by electronic means. In 
Sec.  319.56-3(a), we are clarifying that for fruits and vegetables 
imported under an oral permit, a specific written permit is not 
required. Finally, we have rewritten the proposed Sec.  319.56-3(d) to 
clarify that oral permits may be issued for noncommercial consignments 
if the commodity is admissible with inspection only. For commercial 
shipments, oral permits may be issued for fruits and vegetables 
arriving in the United States without a specific written permit if all 
applicable entry requirements are met and proof of application for a 
specific written permit has been supplied to an inspector.
    In addition, we have modified the definition of general permit for 
clarity. As proposed , the definition referred to the authorization 
contained in paragraphs (b), (c), or (d) of Sec.  319.56-2 for persons 
to import ``the articles named by the general permit.'' Because those 
paragraphs themselves serve as the general permit, we have amended the 
definition so that it refers to ``the articles named in those 
paragraphs.'' To further ensure clarity, we have amended Sec.  319.56-
2(b), (c), and (d) by adding a title to each of those paragraphs, i.e., 
``General permit for dried, cured, or processed fruits and 
vegetables,'' ``General permit for fruits and vegetables grown in 
Canada,'' and ``General permit for fruits and vegetables grown in the 
British Virgin Islands,'' respectively.

Miscellaneous Changes

    In addition to amendments that we are making in response to 
comments received on the proposed rule, we are making several 
miscellaneous changes. We had proposed to amend Sec.  319.56-2(e) by 
adding a footnote stating that fruits and vegetables from designated 
countries or localities that are subject to specific import 
requirements prescribed elsewhere in the regulations are ``not subject 
to the regulations in this section [i.e., Sec.  319.56-2] unless 
specified otherwise.'' In this final rule, we have amended that 
footnote to reflect our intent that such fruits and vegetables will not 
be subject to the regulations in paragraph (e) of Sec.  319.56-2, 
rather than the entire section.
    As proposed, we are amending the lists of ports in Sec.  319.56-
2d(b)(1) where cold treatment may be conducted if it was not conducted 
in transit to the United States. In addition, we are including the port 
of Corpus Christi, TX, to the list of ports as a result of a final rule 
(68 FR 2684-2686, effective and published January 21, 2003, Docket No. 
00-068-3) that was published after the proposal for this rule. Because 
the ports listed in Sec.  319.56-2d(b)(1) are also listed in Sec.  
319.56-2x(b) as ports where fruits and vegetables that require 
treatment for fruit flies may arrive when treatment has not been 
conducted before arrival in the United States, we are replacing the 
list of ports in Sec.  319.56-2x(b) with a reference to Sec.  319.56-
2d(b)(1), thus eliminating the need to update both lists should future 
amendment be needed.
    We are removing and reserving the administrative instructions 
governing importation of grapefruit, lemons, and oranges from Argentina 
in Sec.  319.56-2f based on Harlan Land Company, et al. vs. United 
States Department of

[[Page 37913]]

Agriculture, et al., Case CV-F-00-6106-REC/LJO (D. Ariz. Sept. 
27, 2001).
    We are amending the geographic description in Sec.  319.56-2q of 
the free areas for importing citrus from South Africa to include the 
Warrenton magisterial district (a political division similar to a 
county in the United States) in the Northern Cape Province. Although 
the data submitted by South Africa, which we made available for review 
in the proposed rule, demonstrated that Warrenton and Hartswater 
magisterial districts are free of citrus black spot, our proposed 
amendment erroneously referred only to the Hartswater magisterial 
district. Because the production area for which the data were submitted 
falls within two different magisterial districts, Sec.  319.56-2q 
refers to both the Hartswater and Warrenton magisterial districts in 
this final rule.
    In a new paragraph for peppers from Israel (Sec.  319.56-2u(b)(9)) 
and the new section for persimmons from Korea (Sec.  319.56-2kk), we 
have changed the specific reference to each country's agricultural 
department to the more general reference of the national plant 
protection organization. We have made these changes to avoid the need 
to amend the regulations should the specific name of the national plant 
protection organization change.
    Previously, Sec.  319.56-3 pertained to applications for permits 
for importation of fruits and vegetables, and Sec.  319.56-4 explained 
the permit procedures for importing fruits and vegetables. One of the 
changes we are making to the permit provisions is combining Sec.  
319.56-3 and Sec.  319.56-4 into Sec.  319.56-3. Another change is the 
addition of a new section Sec.  319.56-4 for amendment, denial, or 
withdrawal of permits. These changes necessitate replacing references 
to the former Sec.  319.56-4 with references to Sec.  319.56-3. We have 
made this change in Sec. Sec.  319.56a, 319.56-2b, 319.56-2n, 319.56-
2o, 319.56-2bb, and 319.56-2ff.
    In Sec.  319.56-6, ``Inspection and other requirements at the port 
of first arrival,'' we proposed to amend paragraph (b) to require that 
the owner or the agent makes full disclosure of the type, quantity, and 
country of origin of all fruits and vegetables in the shipment on an 
invoice or similar document and present that document to an inspector 
prior to moving the fruits or vegetables. In this final rule, we have 
added language to clarify that the full disclosure of all fruits and 
vegetables in the shipment may be made either orally for noncommercial 
shipments or on an invoice or similar document for commercial 
shipments. To clarify that the fruit or vegetable must be released for 
movement prior to moving the fruits or vegetables from the port, we 
have added that movement from the port must be in accordance with 
paragraph (d) of Sec.  319.56-6, which specifies the requirements for 
release for movement.
    Finally, we have renumbered several footnotes in the subpart so 
that they will be sequential throughout the regulations and made other 
minor, nonsubstantive changes.
    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.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    This rule relieves restrictions on the importation of certain 
fruits and vegetables from certain countries while continuing to 
protect against the introduction of quarantine pests into the United 
States.
    Immediate implementation of this rule is necessary to provide 
relief to those persons who are adversely affected by restrictions we 
no longer find warranted. Making this rule effective immediately will 
allow interested producers, importers, shippers, and others to benefit 
immediately from the relieved restrictions. Therefore, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that this rule should be effective upon publication in the 
Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is set out below, regarding the 
economic effects of this rule on small entities.
    This final rule amends the fruits and vegetables regulations to 
list a number of fruits and vegetables from certain parts of the world 
as eligible, under specified conditions, for importation into the 
United States. All of the fruits and vegetables, as a condition of 
entry, will be inspected and subject to such disinfection at the port 
of first arrival as may be required by an inspector. In addition, some 
of the fruits and vegetables will be required to meet other special 
conditions. This action will provide the United States with additional 
kinds and sources of fruits and vegetables while continuing to provide 
protection against the introduction and spread of quarantine pests.
    We are recognizing areas in several countries as free from certain 
fruit flies; removing the Province of Arica in Chile as an area free 
from Medfly; amending the packing requirements for certain commodities; 
expanding locations in the northeastern United States where cold 
treatment can be conducted; updating and clarifying restrictions on 
entry of fruits and vegetables; updating and clarifying permit 
procedures including amendment, denial, or withdrawal of permits; 
requiring full disclosure of fruits and vegetables at the port of first 
arrival and clarifying the conditions under which they are released for 
movement; and making other miscellaneous changes.
    We have used all available data to estimate the potential economic 
effects of allowing the fruits and vegetables specified in this rule to 
be imported into the United States. However, some of the data we 
believe would be helpful in making this determination have not been 
available. Specifically, data are not available on: (1) The quantity of 
certain fruits and vegetables produced domestically; (2) the quantity 
of potential imports; and (3) the degree to which imported fruits and 
vegetables will displace existing imported or domestic products. In our 
proposed rule, we asked the public to provide such data.
    In response to comments that we received, this analysis provides 
additional information for rambutan from Honduras, fennel from El 
Salvador, Guatemala, and Nicaragua, and citrus from Australia that was 
not contained in the analysis we included in the proposed rule. (The 
specific comments are discussed earlier in this document under the 
headings ``Rambutan from Central America and Mexico,'' ``Fennel from El 
Salvador, Guatemala, and Nicaragua,'' and ``Citrus from Australia.'') 
We have made additional changes to the data concerning citrus from 
Australia and South Africa and have included the Warrenton magisterial 
district in our discussion of citrus from South Africa.

Effects on Small Entities

    Data on the number and size of U.S. producers of the various 
commodities that may be imported into the United States under this 
final rule are not available. However, since most fruit and

[[Page 37914]]

vegetable farms are small by Small Business Administration standards, 
it is likely that the majority of U.S. farms producing the commodities 
discussed below are small. The potential economic effects of this final 
rule are discussed below by commodity and country of origin.
    Citrus from Australia. The regulations contain provisions for the 
importation of citrus from certain areas in Australia. In this rule, we 
are adding new areas in Australia from which citrus may be imported 
into the United States. In 2001, while the United States produced 
almost 15 million metric tons of citrus, Australia produced 604,000 
metric tons, which is approximately 4 percent of U.S. production. That 
same year, the value of U.S. citrus exports reached almost $591 
million, whereas the value of Australian citrus exports reached $108.7 
million. In 2001, the United States imported more than $298 million of 
citrus fruits; of that amount, $22 million, or 7 percent, was imported 
from Australia. Because the U.S. production of citrus is supplemented 
with citrus imports in order to satisfy the domestic demand, we do not 
believe that allowing the importation of citrus from additional areas 
in Australia will have a significant effect on either U.S. consumers or 
producers. In addition, we believe that U.S. consumers of citrus will 
benefit from the increase in its supply and availability.
    Tomatoes from Australia. In 2000, the United States produced over 
11 million metric tons of tomatoes, exported 208,564 metric tons, and 
imported 730,063 metric tons. Australia produced 413,617 metric tons of 
tomatoes, which is less than the total U.S. imports, and exported 3,807 
metric tons in 2000. Because the U.S. production of tomatoes is 
supplemented with tomato imports in order to satisfy the domestic 
demand, we do not believe that allowing the importation of tomatoes 
from Australia will have a significant effect on either U.S. consumers 
or producers.
    Peppers from Chile. From 1997 to 2000, the United States production 
of peppers (Capsicum annuum) increased 30 percent, from 678,000 metric 
tons to 885,630 metric tons. However, the U.S. demand for imports of 
peppers increased by 70 percent during the same time period. Although 
no trade data on peppers from Chile are available, we do not believe 
that peppers imported from Chile will have a significant impact on U.S. 
producers or other small entities.
    Rambutan from Guatemala. There are no data available regarding 
domestic production of rambutan in the United States. In Guatemala, 
only one 280-square-kilometer farm commercially produces rambutan. 
Recent production data for rambutan in Guatemala indicate about 117 
metric tons are produced per year. We believe any exports to the United 
States will be minimal and would not have any significant economic 
effect on U.S. producers, whether small or large, or consumers.
    Figs from Mexico. According to the Food and Agriculture 
Organization of the United Nations, from 1997 to 2000, the United 
States produced an average of 47,000 metric tons of fresh figs per 
year. The U.S. production of fresh figs remained stable for those 4 
years, but U.S. imports of fresh figs increased from 221 metric tons in 
1997 to 427 metric tons in 2000, indicating an increase in the demand 
for fresh figs in the United States. From 1997 to 2000, Mexico produced 
an average of 3,000 metric tons of fresh figs per year. We do not 
expect a significant economic effect on U.S. producers, whether small 
or large, or consumers, because the U.S. demand for figs appears to be 
exceeding the U.S. production of fresh figs.
    Citrus from South Africa. The regulations contain provisions for 
the importation of citrus from the Western Cape Province of South 
Africa. In this document, we are adding the Hartswater and Warrenton 
magisterial districts in the Northern Cape Province of South Africa to 
the areas from which citrus can be imported into the United States. In 
2001, while the United States produced almost 15 million metric tons of 
citrus, South Africa produced 1.4 million metric tons, which is 
approximately 10 percent of U.S. production. That same year, the value 
of U.S. citrus exports reached almost $591 million, and the value of 
South African citrus exports reached $204.5 million. In 2001, the 
United States imported more than $298 million of citrus fruits; of that 
amount, $26,348,000, or 9 percent, was imported from South Africa. 
Because the U.S. production of citrus is supplemented with citrus 
imports in order to satisfy the domestic demand, we do not believe that 
expanding the areas from which the United States may import citrus from 
South Africa will have a significant effect on either U.S. consumers or 
producers. In addition, we believe that U.S. consumers of citrus will 
benefit from the increase in its supply and availability.
    Peppers from Spain. From 1997 to 2000, the United States production 
of peppers (Capsicum annuum) increased 30 percent, from 678,000 metric 
tons to 885,630 metric tons. However, the U.S. demand for imports of 
peppers increased by 70 percent during the same time period. In 2000, 
the United States produced 885,630 metric tons of peppers and exported 
71,478 metric tons. Of the 346,654 metric tons of peppers that the 
United States imported in 2000, 2,269 metric tons, or less than 1 
percent, were imported from the Almeria Province of Spain. Under this 
rule, the United States may accept imports of peppers from the 
additional province of Alicante in Spain. Considering that the U.S. 
production of peppers is supplemented with imports of peppers in order 
to satisfy the domestic demand, we do not believe that allowing the 
importation of tomatoes from an additional province in Spain will have 
a significant effect on either U.S. consumers or producers.
    Tomatoes from Spain. In 2000, the United States produced over 11 
million metric tons of tomatoes, exported 208,564 metric tons, and 
imported 730,063 metric tons. Of the tomatoes imported into the United 
States, 5,650 metric tons, or less than 1 percent, were imported from 
Spain. Considering that the U.S. production of tomatoes is supplemented 
with imports of tomatoes in order to satisfy the domestic demand, we do 
not believe that allowing the importation of pink or red tomatoes from 
the municipalities of Albu[ntilde]ol and Carchuna in the Granada 
Province in Spain will have a significant effect on either U.S. 
consumers or producers.
    Unavailability of Data. Due to the unavailability of data, we are 
unable to determine the effect that the importation of the following 
commodities will have on U.S. producers or consumers:
    [sbull] Rambutan from Belize, Costa Rica, El Salvador, Honduras, 
Mexico, Nicaragua, and Panama.
    [sbull] Longan from China.
    [sbull] Cape gooseberries and yellow pitaya from Colombia.
    [sbull] Loroco from El Salvador, Honduras, and Nicaragua.
    [sbull] Parsley and rosemary from El Salvador.
    [sbull] Waterlily or lotus and German chamomile from El Salvador, 
Guatemala, Honduras, and Nicaragua.
    [sbull] Basil from Honduras.
    [sbull] Yam-bean or Jicama root and oregano or sweet marjoram from 
El Salvador and Honduras.
    [sbull] Yard-long bean from Nicaragua.
    [sbull] Persimmon from Spain.
    Fennel from El Salvador, Guatemala, and Nicaragua. There are no 
data available on the production of fennel in El Salvador, Guatemala, 
or Nicaragua. Fennel is produced in Arizona and California. While the 
estimated total value or quantity produced in the United States is not 
known, in 2001, Monterey County, CA, produced an estimated 741 acres of 
fennel valued at $3,303,000, and Santa Barbara County,

[[Page 37915]]

CA, produced an estimated 261 acres valued at $1.5 million. Fennel 
imports will directly compete with domestic production, and domestic 
producers may lose market share. Domestic consumers will benefit if 
increased competition results in lower prices. The costs associated 
with imports will likely be borne by a small group of domestic 
producers, while the more diffuse group of consumers will enjoy the 
benefits. Benefits enjoyed by consumers will likely be too small to be 
measured or even noticed.
    Rambutan from Honduras. There are no data available on the 
production of rambutan in the United States. Honduras reported that 
there are over 125 growers of rambutan in that country. Honduras 
estimated that it would export 1,500 metric tons of rambutan from 250 
hectares of rambutan that will be in production in 2003.
    Persimmons from the Republic of Korea. In the United States, 
persimmons are a specialty crop produced on a small scale mainly in 
California and Texas; thus, no data on the U.S. production of 
persimmons are available. Therefore, we were unable to determine the 
effect this final rule would have on U.S. producers or consumers of 
persimmons. In 2000, South Korea produced 288,000 metric tons of 
persimmons, imported 2 metric tons, and exported 4,258 metric tons.
    Yam-bean from Nicaragua. There are no data available regarding 
production of yam-bean or Jicama root in the United States. While the 
production of yam-bean or Jicama root in Nicaragua has remained stable 
for the past 3 years at approximately 133,000 metric tons per year, we 
are unable to determine the effect that imports of yam-bean will have 
on U.S. producers or consumers.
    This rule contains various recordkeeping requirements, which were 
described in our proposed rule, and which have been approved by the 
Office of Management and Budget (see ``Paperwork Reduction Act'' 
below).

Executive Order 12988

    This final rule allows certain fruits and vegetables to be imported 
into the United States from certain parts of the world. State and local 
laws and regulations regarding the importation of fruits and vegetables 
under this rule will be preempted while the fruits and vegetables are 
in foreign commerce. Fresh fruits and vegetables are generally imported 
for immediate distribution and sale to the consuming public and remain 
in foreign commerce until sold to the ultimate consumer. The question 
of when foreign commerce ceases in other cases must be addressed on a 
case-by-case basis. No retroactive effect will be given to this rule, 
and this rule will not require administrative proceedings before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0210.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by 
reference, Logs, Nursery stock, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Rice, Vegetables.

0
Accordingly, we are amending 7 CFR parts 300 and 319 as follows:

PART 300--INCORPORATION BY REFERENCE

0
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.

0
2. In Sec.  300.1, paragraph (a) is amended as follows:

0
a. In paragraph (a)(5), by removing ``T107-a,'' and by removing the 
word ``and'' after the words ``September 2002;''.

0
b. In paragraph (a)(6), by removing the period and adding the word ``; 
and'' in its place.

0
c. By adding a new paragraph (a)(7) to read as follows:


Sec.  300.1  Plant Protection and Quarantine Treatment Manual.

    (a) * * *
    (7) Treatments T106-e, T107-a, and T107-j, dated April 2003.
* * * * *

0
3. A new Sec.  300.5 is added to read as follows:


Sec.  300.5  International Standards for Phytosanitary Measures.

    (a) The International Standards for Phytosanitary Measures 
Publication No. 4, ``Requirements for the Establishment of Pest Free 
Areas,'' which was published February 1996 by the International Plant 
Protection Convention of the United Nations' Food and Agriculture 
Organization has been approved for incorporation by reference in 7 CFR 
chapter III by the Director of the Office of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
    (b) Availability. Copies of International Standards for 
Phytosanitary Measures Publication No. 4:
    (1) Are available for inspection at the Office of the Federal 
Register Library, 800 North Capitol Street NW., Suite 700, Washington, 
DC; or
    (2) May be obtained by writing to Phytosanitary Issues Management, 
Operational Support, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, 
MD 20737-1236; or
    (3) May be viewed on the APHIS Web site at http://www.aphis.usda.gov/ppq/pim/standards/. PART

PART 319--FOREIGN QUARANTINE NOTICES

0
4. The authority citation for part 319 is revised to read as follows:

    Authority: 7 U.S.C. 450 and 7701-7760; 21 U.S.C. 136 and 136a; 7 
CFR 2.22, 2.80, and 371.3.


Sec.  319.37-5  [Amended]

0
5. In Sec.  319.37-5, paragraph (b)(3)(xlii), the word ``necratrix'' is 
removed and the word ``necatrix'' is added in its place.


Sec.  319.56  [Amended]

0
6. In Sec.  319.56, paragraph (a)(2), the words ``injurious insects, 
including fruit and melon flies (Tephritidae)'' are removed and the 
words ``quarantine pests'' are added in their place.


Sec.  319.56a  [Amended]

0
7. In Sec.  319.56a, paragraph (b), the citations ``Sec. Sec.  319.56-3 
and 319.56-4'' are removed and the citation ``Sec.  319.56-3'' is added 
in their place.

0
8. Section 319.56-1 is amended by adding, in alphabetical order, new 
definitions for field, general permit, permit, place of production, 
production

[[Page 37916]]

site, quarantine pest, and specific written permit to read as follows:


Sec.  319.56-1  Definitions.

* * * * *
    Field. A plot of land with defined boundaries within a place of 
production on which a commodity is grown.
* * * * *
    General permit. The authorization contained in Sec.  319.56-2(b), 
(c), or (d) for any person to import the articles named in those 
paragraphs, in accordance with the requirements specified in those 
paragraphs, without being issued a specific written permit.
* * * * *
    Permit. A written or oral authorization, including by electronic 
methods, to import fruits or vegetables in accordance with the 
regulations in this subpart.
    Place of production. Any premises or collection of fields operated 
as a single production or farming unit. This may include a production 
site that is separately managed for phytosanitary purposes.
* * * * *
    Production site. A defined portion of a place of production 
utilized for the production of a commodity that is managed separately 
for phytosanitary purposes. This may include the entire place of 
production or portions of it. Examples of portions of places of 
production are a defined orchard, grove, field, or premises.
    Quarantine pest. A pest of potential economic importance to the 
area endangered by it and not yet present there, or present but not 
widely distributed there and being officially controlled.
    Specific written permit. A written or electronic authorization 
issued by APHIS to a person to import a particular fruit or vegetable 
from a specified country in accordance with the requirements of this 
subpart and any additional conditions that may be assigned.

0
9. Section 319.56-2 is amended as follows:
0
a. In paragraphs (b), (c), and (d), by adding a heading to read as set 
forth below.
0
b. In paragraph (e), by revising the introductory text to read as set 
forth below.
0
c. In paragraph (e)(1), by removing the words ``injurious insects, 
including fruit and melon flies (Tephritidae)'' and adding the words 
``quarantine pests'' in their place.
0
d. In paragraph (e)(2), by removing the words ``injurious insects that 
attack it'' and adding the words ``quarantine pests'' in their place.
0
e. In paragraph (e)(3), by removing the words ``, its importation can 
be authorized without risk,''; and by removing the words ``injurious 
insects'' and adding the words ``quarantine pests'' in their place.
0
f. In paragraph (e)(4), by removing the words ``, its importation can 
be authorized without risk,'' and by removing the words ``certain 
injurious insects'', ``certain insects'', and ``injurious insects'' and 
adding the words ``quarantine pests'' in their place.
0
g. By revising paragraphs (f) and (h) and the OMB citation at the end 
of the section to read as set forth below.
0
h. In paragraph (j), by adding the words ``except Arica'' immediately 
after the words ``all Provinces in Chile''.


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

* * * * *
    (b) General permit for dried, cured, or processed fruits and 
vegetables. * * *
    (c) General permit for fruits and vegetables grown in Canada. * * *
    (d) General permit for fruits and vegetables grown in the British 
Virgin Islands. * * *
* * * * *
    (e) Any other fruit or vegetable, except those restricted to 
certain countries and districts by special quarantine,\1\ other orders, 
or provisions of the regulations in this subpart \2\ may be imported 
from any country under a permit issued in accordance with this subpart 
and upon compliance with the regulations in this subpart, at the ports 
authorized in the permit, if the U.S. Department of Agriculture, after 
reviewing evidence presented to it, is satisfied that the fruit or 
vegetable either:
---------------------------------------------------------------------------

    \1\ The importation of citrus fruits into the United States from 
eastern and southeastern Asia and certain other areas is restricted 
by the Citrus Fruit Quarantine, Sec.  319.28.
    \2\ Fruits and vegetables from designated countries or 
localities that are subject to specific import requirements 
prescribed elsewhere in this subpart are not subject to the 
regulations in paragraph (e) of this section unless specified 
otherwise. Such fruits and vegetables are, however, subject to all 
other general requirements contained in other sections of this 
subpart.
---------------------------------------------------------------------------

* * * * *
    (f) Before the Administrator may authorize importation of a fruit 
or vegetable under paragraphs (e)(3) or (4) of this section, he or she 
must determine that the fruit or vegetable is being imported from an 
area that is free of the pest or pests in accordance with the criteria 
for establishing freedom found in International Standard for 
Phytosanitary Measures Publication No. 4, ``Requirements for the 
Establishment of Pest Free Areas.'' The international standard was 
established by the International Plant Protection Convention of the 
United Nations' Food and Agriculture Organization and is incorporated 
by reference in Sec.  300.5 of this chapter. APHIS must approve the 
survey protocol used to determine pest-free status, and pest-free areas 
are subject to audit by APHIS to verify their status. When used to 
authorize importation under paragraph (e)(3) of this section, the 
criteria must be applied to all quarantine pests that attack the fruit 
or vegetable; when used to authorize importation under paragraph (e)(4) 
of this section, the criteria must be applied to those particular 
quarantine pests from which the area or district is to be considered 
free.
* * * * *
    (h) The Administrator has determined that the following areas in 
Mexico meet the criteria of paragraphs (e) and (f) of this section with 
regard to the plant pests Ceratitis capitata, Anastrepha ludens, A. 
serpentina, A. obliqua, and A. fraterculus: Comondu, La Paz, Loreto, 
Los Cabos, and Muleg[eacute] in the State of Baja California Sur; the 
municipalities of Bachiniva, Casas Grandes, Cuahutemoc, Guerrero, 
Namiquipa, and Nuevo Casas Grandes in the State of Chihuahua; the 
municipalities of Ahome, Choix, El Fuerte, Guasave, and Sinaloa de 
Leyva in the State of Sinaloa; and the municipalities of Altar, Atil, 
Bacum, Benito Juarez, Caborca, Cajeme, Carbo, Empalme, Etchojoa, 
Guaymas, Hermosillo, Huatabampo, Navojoa, Pitiquito, Plutarco Elias 
Calles, Puerto Penasco, San Luis Rio Colorado, San Miguel, and San 
Ignacio Rio Muerto in the State of Sonora. Fruits and vegetables 
otherwise eligible for importation under this subpart may be imported 
from these areas without treatment for the pests named in this 
paragraph.
* * * * *

(Approved by the Office of Management and Budget under control numbers 
0579-0049 and 0579-0210)


Sec.  319.56-2b  [Amended]

0
10. In Sec.  319.56-2b, paragraph (a)(1), the citation ``Sec.  319.56-
4'' is removed and the citation ``Sec.  319.56-3'' is added in its 
place.

0
11. Section 319.56-2d is amended as follows:
0
a. By redesignating footnote 1 as footnote 3.
0
b. By revising paragraph (b)(1) to read as set forth below.


Sec.  319.56-2d  Administrative instructions for cold treatments of 
certain imported fruits.

* * * * *

[[Page 37917]]

    (b) * * *
    (1) Places of precooling and refrigeration. Refrigeration may be 
conducted while the fruit is on shipboard in transit to the United 
States. If not so refrigerated, the fruit must be both precooled and 
refrigerated after arrival only in cold storage warehouses approved by 
the Administrator and located in the area north of 39[deg] longitude 
and east of 104[deg] latitude or at one of the following ports: The 
maritime ports of Wilmington, NC, Seattle, WA, Corpus Christi, TX, and 
Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; 
Hartsfield-Atlanta International Airport, Atlanta, GA; and Washington 
Dulles International Airport, Chantilly, VA. Fruit that is to be 
refrigerated in transit must be precooled either at a dockside 
refrigeration plant prior to loading aboard the carrying vessel, or 
aboard the carrying vessel. Refrigeration must be completed in the 
container, compartment, or room in which it is begun.
* * * * *


Sec.  319.56-2f  [Removed and reserved]

0
12. Section 319.56-2f is removed and reserved.

0
13. Section 319.56-2j is amended as follows:

0
a. By redesignating footnotes 2 and 3 as footnotes 4 and 5, 
respectively.

0
b. By revising paragraph (a)(2) to read as set forth below.

0
c. In paragraph (a)(4), by removing the words ``this section'' and 
``paragraph (a)(2) of this section'' and adding the words ``the PPQ 
Treatment Manual'' in their place; by adding the words ``or she'' 
immediately after the word ``he''; and by removing the word ``insect'' 
and adding the word ``quarantine'' in its place.

0
d. In paragraph (a)(5), by adding the words ``or her'' immediately 
after the word ``his''.

0
e. In paragraph (a)(6), by removing the words ``paragraph (a)(2) of 
this section'' and adding the words ``the PPQ Treatment Manual'' in 
their place.


Sec.  319.56-2j  Conditions governing the entry of apples and pears 
from Australia (including Tasmania) and New Zealand.\4\
---------------------------------------------------------------------------

    \4\ Apples and pears from Australia (excluding Tasmania) where 
certain tropical fruit flies occur are also subject to the cold 
treatment requirements of Sec.  319.56-2d.
---------------------------------------------------------------------------

* * * * *
    (a) * * *
    (2) Approved fumigation. Fumigation with methyl bromide must be in 
accordance with the PPQ Treatment Manual, which is incorporated by 
reference in Sec.  300.1 of this chapter.
* * * * *


Sec.  319.56-2k  [Amended]

0
14. In Sec.  319.56-2k, footnote 1 is redesignated as footnote 6.


Sec.  Sec.  319.56-2n and 319.56-2o  [Amended]

0
15. In Sec.  319.56-2n and Sec.  319.56-2o, the introductory text of 
each section is amended by removing the citation ``Sec.  319.56-4'' and 
adding the citation ``Sec.  319.56-3'' in its place.


Sec.  319.56-2p  [Amended]

0
16. Section 319.56-2p is amended as follows:

0
a. In paragraph (a)(3)(i), by adding the words ``(including 
Hispaniola)'' immediately after the words ``the Greater Antilles''.

0
b. In paragraph (f), by removing the words ``injurious insects'' and 
adding the words ``quarantine pests'' in their place.


Sec.  319.56-2q  [Amended]

0
17. Section 319.56-2q is amended as follows:

0
a. In the introductory text of the section and in paragraph (a), by 
adding the words ``the Hartswater and Warrenton magisterial districts 
in the Northern Cape Province or'' immediately before the words ``the 
Western Cape Province''.

0
b. In paragraph (b), introductory text, by removing the words ``genus 
Ceritatis'' and adding the words ``genera Ceratitis'' in their place.

0
18. In Sec.  319.56-2t, the table is amended as follows:

0
a. By adding entries, in alphabetical order, under Belize, for 
rambutan; under Chile, for pepper; under Costa Rica, for rambutan; 
under El Salvador, for fennel, German chamomile, loroco, oregano or 
sweet marjoram, parsley, rambutan, rosemary, waterlily or lotus, and 
yam-bean or Jicama root; under Guatemala, for fennel, German chamomile, 
rambutan, and waterlily or lotus; under Honduras, for basil, German 
chamomile, loroco, oregano or sweet marjoram, rambutan, waterlily or 
lotus, and yam-bean or Jicama root; under Mexico, for fig and rambutan; 
under Nicaragua, for fennel, German chamomile, loroco, rambutan, 
waterlily or lotus, yam-bean or Jicama root; and under Panama, for 
rambutan to read as set forth below.

0
b. Under Guatemala, by placing the entry for ``Jicama'' in alphabetical 
order.

0
c. By revising, under Guatemala, the entries for loroco and rosemary, 
and, under Spain, the entry for tomato, to read as set forth below.


Sec.  319.56-2t  Administrative instructions: conditions governing the 
entry of certain fruits and vegetables.

* * * * *

----------------------------------------------------------------------------------------------------------------
      Country/locality             Common name           Botanical name                 Plant part(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Belize
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Belizean department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             Belizean department of agriculture.
                                                                             Shipping boxes must be labeled
                                                                             ``Not for distribution in HI, PR,
                                                                             VI, and Guam.'')
 
                                                  * * * * * * *
Chile
 

[[Page 37918]]

 
                                                  * * * * * * *
                             Pepper................  Capsicum annuum......  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Chilean department of
                                                                             agriculture stating that the fruit
                                                                             originated in a fruit-fly-free
                                                                             area--see Sec.   319.56-2(j).)
 
                                                  * * * * * * *
Costa Rica
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Costa Rican department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             Costa Rican department of
                                                                             agriculture. Shipping boxes must be
                                                                             labeled ``Not for distribution in
                                                                             HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
El Salvador
 
                                                  * * * * * * *
                             Fennel................  Foeniculum vulgare...  Leaf and stem. (Shipping boxes must
                                                                             be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             German chamomile......  Matricaria recutita    Flower and leaf. (Shipping boxes
                                                      and Matricaria         must be labeled ``Not for
                                                      chamomilla.            distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Loroco................  Fernaldia spp........  Flower, leaf, and stem.
                             Oregano or sweet        Origanum spp.........  Leaf and stem. (Shipping boxes must
                              marjoram.                                      be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             Parsley...............  Petroselinum crispum.  Leaf and stem. (Shipping boxes must
                                                                             be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             El Salvador's department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of El
                                                                             Salvador's department of
                                                                             agriculture. Shipping boxes must be
                                                                             labeled ``Not for distribution in
                                                                             HI, PR, VI, and Guam.'')
                             Rosemary..............  Rosmarinus             Leaf and stem. (Shipping boxes must
                                                      officinalis.           be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             Waterlily or lotus....  Nelumbo nucifera.....  Roots without soil. (Shipping boxes
                                                                             must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Yam-bean or Jicama      Pachyrhizus spp......  Roots without soil. (Shipping boxes
                              root.                                          must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
 
                                                  * * * * * * *
Guatemala
 
                                                  * * * * * * *
                             Fennel................  Foeniculum vulgare...  Leaf and stem. (Shipping boxes must
                                                                             be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             German chamomile......  Matricaria chamomilla  Flower and leaf. (Shipping boxes
                                                      and Matricaria         must be labeled ``Not for
                                                      recutita.              distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Loroco................  Fernaldia spp........  Flower and leaf.
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Guatemalan department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             Guatemalan department of
                                                                             agriculture. Shipping boxes must be
                                                                             labeled ``Not for distribution in
                                                                             HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
                             Rosemary..............  Rosmarinus             Leaf and stem. (Shipping boxes must
                                                      officinalis.           be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
                             Waterlily or lotus....  Nelumbo nucifera.....  Roots without soil. (Shipping boxes
                                                                             must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
 

[[Page 37919]]

 
                                                  * * * * * * *
Honduras
 
                                                  * * * * * * *
                             Basil.................  Ocimum basilicum.....  Leaf and stem. (Must be accompanied
                                                                             by a phytosanitary certificate
                                                                             issued by the Honduran department
                                                                             of agriculture stating that the
                                                                             fruit is free from Planococcus
                                                                             minor. Shipping boxes must be
                                                                             labeled ``Not for distribution in
                                                                             HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
                             German chamomile......  Matricaria chamomilla  Flower and leaf. (Shipping boxes
                                                      and Matricaria         must be labeled ``Not for
                                                      recutita.              distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Loroco................  Fernaldia spp........  Flower and leaf.
                             Oregano or sweet        Origanum spp.........  Leaf and stem. (Shipping boxes must
                              marjoram.                                      be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Honduran department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             Honduran department of agriculture.
                                                                             Shipping boxes must be labeled
                                                                             ``Not for distribution in HI, PR,
                                                                             VI, and Guam.'')
                             Waterlily or lotus....  Nelumbo nucifera.....  Roots without soil. (Shipping boxes
                                                                             must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Yam-bean or Jicama      Pachyrhizus spp......  Roots without soil. (Shipping boxes
                              root.                                          must be labeled ``Not for
                                                                             distribution in HI, PR, VI and
                                                                             Guam.'')
 
                                                  * * * * * * *
Mexico
 
                                                  * * * * * * *
                             Fig...................  Ficus carica.........  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the national plant protection
                                                                             organization of Mexico stating that
                                                                             the fruit originated in a fruit-fly-
                                                                             free area--see Sec.   319.56-2(h).
                                                                             Shipping boxes must be labeled
                                                                             ``Not for distribution in HI, PR,
                                                                             VI, and Guam.'')
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the national plant protection
                                                                             organization of Mexico stating that
                                                                             (1) the fruit is free from Coccus
                                                                             moestus, C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus
                                                                             P. minor, and Pseudococcus landoi
                                                                             and; (2) all damaged fruit were
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             national plant protection
                                                                             organization of Mexico. Shipping
                                                                             boxes must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
 
                                                  * * * * * * *
Nicaragua
 
                                                  * * * * * * *
                             Fennel................  Foeniculum vulgare...  Leaf and stem. (Shipping boxes must
                                                                             be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
                             German chamomile......  Matricaria chamomilla  Flower and leaf. (Shipping boxes
                                                      and Matricaria         must be labeled ``Not for
                                                      recutita.              distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Loroco................  Fernaldia spp........  Leaf and stem.
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             the Nicaraguan department of
                                                                             agriculture stating that (1) the
                                                                             fruit is free from Coccus moestus,
                                                                             C. viridis, Dysmicoccus
                                                                             neobrevipes, Planococcus lilacinus,
                                                                             P. minor, and Psedococcus landoi;
                                                                             and (2) all damaged fruit was
                                                                             removed from the shipment prior to
                                                                             export under the supervision of the
                                                                             Nicaraguan department of
                                                                             agriculture. Shipping boxes must be
                                                                             labeled ``Not for distribution in
                                                                             HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
                             Waterlily or lotus....  Nelumbo nucifera.....  Roots without soil. (Shipping boxes
                                                                             must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
                             Yam-bean or Jicama      Pachyrhizus spp......  Roots without soil. (Shipping boxes
                              root.                                          must be labeled ``Not for
                                                                             distribution in HI, PR, VI, and
                                                                             Guam.'')
Panama

[[Page 37920]]

 
 
                                                  * * * * * * *
                             Rambutan..............  Nephelium lappaceum..  Fruit. (Must be accompanied by a
                                                                             phytosanitary certificate issued by
                                                                             Panama's department of agriculture
                                                                             stating that (1) the fruit is free
                                                                             from Coccus moestus, C. viridis,
                                                                             Dysmicoccus neobrevipes,
                                                                             Planococcus lilacinus, P. minor,
                                                                             and Psedococcus landoi; and (2) all
                                                                             damaged fruit was removed from the
                                                                             shipment prior to export under the
                                                                             supervision of Panama's department
                                                                             of agriculture. Shipping boxes must
                                                                             be labeled ``Not for distribution
                                                                             in HI, PR, VI, and Guam.'')
 
                                                  * * * * * * *
Spain
 
                                                  * * * * * * *
                             Tomato................  Lycopersicon           Fruit, only if it is green upon
                                                      esculentum.            arrival in the United States (pink
                                                                             or red fruit may only be imported
                                                                             from Almeria Province, Murcia
                                                                             Province, or the municipalities of
                                                                             Albu[ntilde]ol and Carchuna in
                                                                             Granada Province and only in
                                                                             accordance with Sec.   319.56-2dd
                                                                             of this subpart).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
19. In Sec.  319.56-2u, paragraph (b)(7) is revised and new paragraphs 
(b)(8) and (b)(9) and an OMB citation are added to read as follows:


Sec.  319.56-2u  Conditions governing the entry of lettuce and peppers 
from Israel.

    (b) * * *
    (7) Prior to movement from approved insect-proof screenhouses in 
the Arava Valley, the peppers must be packed in either individual 
insect-proof cartons or in non-insect-proof cartons that are covered by 
insect-proof mesh or plastic tarpaulins; covered non-insect-proof 
cartons must be placed in shipping containers.
    (8) The packaging safeguards required by paragraph (b)(7) of this 
section must remain intact at all times during the movement of the 
peppers to the United States and must be intact upon arrival of the 
peppers in the United States.
    (9) Each shipment of peppers must be accompanied by a phytosanitary 
certificate issued by the Israeli national plant protection 
organization stating that the conditions of paragraphs (b)(1) through 
(b)(7) of this section have been met.


(Approved by the Office of Management and Budget under control number 
0579-0210)


0
20. In Sec.  319.56-2v, paragraph (a)(1) is revised to read as follows:


Sec.  319.56-2v  Conditions governing the entry of citrus from 
Australia.

    (a) * * *
    (1) The Riverland district of South Australia, defined as the 
county of Hamley; the geographical subdivisions, called hundreds, of 
Bookpurnong, Cadell, Eba, Fisher, Forster, Gordon, Hay, Holder, 
Katarapko, Loveday, Markaranka, Morook, Murbko, Murtho, Nildottie, 
Paisley, Parcoola, Paringa, Pooginook, Pyap, Ridley, Skurray, Stuart, 
and Waikerie; and the Parish of Onley of the Shire of Mildura, 
Victoria;
* * * * *

0
21. Section 319.56-2x is amended as follows:

0
a. In paragraph (a), the table is amended by adding, in alphabetical 
order, under China, an entry for longan; a new entry for Colombia; 
under Nicaragua, an entry for yard-long-bean; and under Spain, an entry 
for persimmon to read as set forth below.

0
b. By revising paragraph (b) to read as set forth below.


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)
----------------------------------------------------------------------------------------------------------------
 
 
                                                  * * * * * * *
China
 
 
                                                  * * * * * * *
                                     Longan.....................  Dimocarpus longan..........  Fruit.
Colombia...........................  Cape gooseberry............  Physalis peruviana.........  Fruit.
                                     Yellow pitaya..............  Selenicereus megalanthus...  Fruit.
 
 
                                                  * * * * * * *
Nicaragua
 
 
                                                  * * * * * * *
                                     Yard-long-bean.............  Vigna unguiculata..........  Pod.
 

[[Page 37921]]

 
                                                  * * * * * * *
Spain
 
                                                  * * * * * * *
                                     Persimmon..................  Diospyros khaki............  Fruit.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    (b) If treatment has not been completed before the fruits and 
vegetables arrive in the United States, fruits and vegetables listed in 
the table in this section and requiring treatment for fruit flies may 
arrive in the United States only at a port listed in Sec.  319.56-
2d(b)(1) of this subpart.


Sec.  319.56-2y  [Amended]

0
22. In Sec.  319.56-2y, footnote 1 is redesignated as footnote 7.


Sec.  319.56-2z  [Amended]

0
23. In Sec.  319.56-2z, footnote 1 is redesignated as footnote 8.


Sec.  319.56-2bb  [Amended]

0
24. In Sec.  319.56-2bb, the introductory paragraph is amended by 
removing the citation ``Sec.  319.56-4'' and adding the citation 
``Sec.  319.56-3'' in its place.

0
25. Section 319.56-2dd is amended as follows:

0
a. By redesignating footnotes 1, 2, and 3 as footnotes 9, 10, and 11, 
respectively.

0
b. In paragraphs (a)(1) and (a)(7), by adding the words ``Province, the 
Murcia Province, or the municipalities of Albu[ntilde]ol and Carchuna 
in the Granada'' immediately after the word ``Almeria''.

0
c. By revising paragraphs (a)(6), (b)(5), (c)(6), and (d)(2) and newly 
redesignated footnotes 10 and 11 to read as set forth below.
0
d. By adding a new paragraph (e) and revising the OMB citation at the 
end of the section to read as set forth below.


Sec.  319.56-2dd  Administrative instructions: conditions governing the 
entry of tomatoes.

    (a) * * *
    (6) The tomatoes must be packed within 24 hours of harvest. They 
must be safeguarded from harvest to export by insect-proof mesh screens 
or plastic tarpaulins, including while in transit to the packing house 
and while awaiting packaging. They must be packed in insect-proof 
cartons or covered by insect-proof mesh or plastic tarpaulins for 
transit to the airport and subsequent export to the United States. 
These safeguards must be intact upon arrival in the United States; and
* * * * *
    (b) * * * \10\
---------------------------------------------------------------------------

    \10\ See footnote 9 in paragraph (a) of this section.
---------------------------------------------------------------------------

* * * * *
    (5) From June 1 through September 30, the tomatoes must be packed 
within 24 hours of harvest. They must be safeguarded by insect-proof 
mesh screen or plastic tarpaulin while in transit to the packing house 
and while awaiting packing. They must be packed in insect-proof cartons 
or covered by insect-proof mesh screen or plastic tarpaulin. These 
safeguards must be intact upon arrival in the United States; and
* * * * *
    (c) * * * \11\
---------------------------------------------------------------------------

    \11\ See footnote 9 in paragraph (a) of this section.
---------------------------------------------------------------------------

    (6) The tomatoes must be packed within 24 hours of harvest and must 
be pink at the time of packing. They must be safeguarded by an insect-
proof mesh screen or plastic tarpaulin while in transit to the packing 
house and while awaiting packing. They must be packed in insect-proof 
cartons or covered by insect-proof mesh or plastic tarpaulin for 
transit to the airport and export to the United States. These 
safeguards must be intact upon arrival in the United States; and
* * * * *
    (d) * * *
    (2) The tomatoes must be treated and packed within 24 hours of 
harvest. Once treated, the tomatoes must be safeguarded by an insect-
proof mesh screen or plastic tarpaulin while in transit to the packing 
house and awaiting packing. They must be packed in insect-proof cartons 
or insect-proof mesh or plastic tarpaulin under APHIS monitoring for 
transit to the airport and subsequent export to the United States. 
These safeguards must be intact upon arrival in the United States; and
* * * * *
    (e) Tomatoes from Australia. Tomatoes (fruit) (Lycopersicon 
esculentum) may be imported into the United States from Australia only 
under the following conditions:
    (1) The tomatoes must be grown in greenhouses registered with, and 
inspected by, the Australian Quarantine Inspection Service (AQIS);
    (2) Two months prior to shipping, AQIS must inspect the greenhouse 
to establish its freedom from the following quarantine pests: 
Bactrocera aquilonis, B. cucumis, B. jarvis, B. neohumeralis, B. 
tryoni, Ceratitis capitata, Chrysodeixis argentifera, C. erisoma, 
Helicoverpa armigera, H. punctigera, Lamprolonchaea brouniana, 
Sceliodes cordalis, and Spodoptera litura. AQIS must also set and 
maintain fruit fly traps inside the greenhouses and around the 
perimeter of the greenhouses. Inside the greenhouses, the traps must be 
APHIS-approved fruit fly traps, and they must be set at the rate of six 
per hectare. In all areas outside the greenhouse and within 8 
kilometers of the greenhouse, fruit fly traps must be placed on a 1 
kilometer grid. All traps must be checked at least every 7 days;
    (3) Within a registered greenhouse, capture of a single fruit fly 
or other quarantine pest will result in immediate cancellation of 
exports from that greenhouse until the source of the infestation is 
determined, the infestation has been eradicated, and measures are taken 
to preclude any future infestation;
    (4) Outside of a registered greenhouse, if one fruit fly of the 
species specified in paragraph (e)(2) of this section is captured, the 
trap density and frequency of trap inspection must be increased to 
detect a reproducing colony. Capture of two Medflies or three of the 
same species of Bactrocera within 2 kilometers of each other and within 
30 days will result in the cancellation of exports from all registered 
greenhouses within 2 kilometers of the finds until the source of the 
infestation is determined and the fruit fly infestation is eradicated;
    (5) AQIS must maintain records of trap placement, checking of 
traps, and any fruit fly captures, and must make the records available 
to APHIS upon request;
    (6) The tomatoes must be packed within 24 hours of harvest. They 
must be safeguarded by an insect-proof mesh screen or plastic tarpaulin 
while in transit to the packing house or while awaiting packing. They 
must be placed in insect-proof cartons or securely covered with insect-
proof mesh or

[[Page 37922]]

plastic tarpaulin for transport to the airport or other shipping point. 
These safeguards must be intact upon arrival in the United States; and
    (7) Each shipment of tomatoes must be accompanied by a 
phytosanitary certificate issued by AQIS stating ``These tomatoes were 
grown, packed, and shipped in accordance with the requirements of Sec.  
319.56-2dd(e) of 7 CFR.''


(Approved by the Office of Management and Budget under control numbers 
0579-0131 and 0579-0210)


Sec.  319.56-2ff  [Amended]

0
26. In Sec.  319.56-2ff, the introductory text is amended by removing 
the citation ``Sec.  319.56-4'' and adding the citation ``Sec.  319.56-
3'' in its place.

0
27. Section 319.56-2gg is amended as follows:

0
a. In paragraphs (a) and (h), by adding the words ``Alicante or'' 
before the words ``Almeria Province''.

0
b. By revising paragraph (e) and adding an OMB citation at the end of 
the section to read as set forth below.


Sec.  319.56-2gg  Administrative instructions; conditions governing the 
entry of peppers from Spain.

* * * * *
    (e) The peppers must be safeguarded from harvest to export by 
insect-proof mesh or plastic tarpaulin, including while in transit to 
the packing house and while awaiting packing. They must be packed in 
insect-proof cartons or covered by insect-proof mesh or plastic 
tarpaulin for transit to the airport and subsequent export to the 
United States. These safeguards must be intact upon arrival in the 
United States;
* * * * *

(Approved by the Office of Management and Budget under control number 
0579-0210)


Sec.  319.56-2jj  [Amended]

0
28. In Sec.  319.56-2jj, footnote 1 is redesignated as footnote 12.

0
29. A new Sec.  319.56-2kk is added to read as follows:


Sec.  319.56-2kk  Persimmons from the Republic of Korea.

    Persimmons (fruit) (Disopyros khaki) may be imported into the 
United States from the Republic of Korea only under the following 
conditions:
    (a) The production site, which is an orchard, where the persimmons 
are grown must have been inspected at least once during the growing 
season and before harvest for the following pests: Conogethes 
punctiferalis, Planococcus kraunhiae, Stathmopoda masinissa, and 
Tenuipalpus zhizhilashiviliae;
    (b) After harvest, the persimmons must be inspected by the Republic 
of Korea's national plant protection organization (NPPO) and found free 
of the pests listed in paragraph (a) of this section before the 
persimmons may be shipped to the United States;
    (c) Each shipment of persimmons must be accompanied by a 
phytosanitary certificate issued by the Republic of Korea's NPPO 
stating that the fruit is free of Conogethes punctiferalis, Planococcus 
kraunhiae, Stathmopoda masinissa, and Tenuipalpus zhizhilashiviliae.
    (d) If any of the pests listed in paragraph (a) of this section are 
detected in an orchard, exports from that orchard will be canceled 
until the source of infestation is determined and the infestation is 
eradicated.


(Approved by the Office of Management and Budget under control number 
0579-0210)

0
30. Sections 319.56-3 and 319.56-4 are revised to read as follows:


Sec.  319.56-3  Applications for permits for importation of fruits and 
vegetables; issuance of permits.

    (a) Permit required. Except for fruits or vegetables that may be 
imported under the general permit provided in Sec.  319.56-2(b), (c), 
and (d) or for fruits and vegetables imported under an oral permit in 
accordance with paragraph (d) of this section, no fruits or vegetables 
may be imported unless a specific written permit has been issued for 
the fruits or vegetables and unless the fruits or vegetables meet all 
other applicable requirements of this subpart and any other 
requirements specified by APHIS in the specific written permit.
    (b) Applying for a specific written permit. Applications must be 
submitted in writing or electronically and should be made in advance of 
the proposed shipment and provided to the Plant Protection and 
Quarantine program.\13\ Applications must include the country or 
locality of origin of the fruits or vegetables, the port of first 
arrival, the name and address of the importer in the United States, and 
the identity and quantity of the fruit or vegetable.
---------------------------------------------------------------------------

    \13\ Application for permits to import fruit and vegetables 
under this subpart may be submitted to the Animal and Plant Health 
Inspection Service, Plant Protection and Quarantine, 4700 River Road 
Unit 136, Riverdale, MD 20737-1236; on the Internet using the APHIS 
Import Authorization System, https://Web01.aphis.usda.gov/IAS.nsf/; 
or by fax (301) 734-5786.
---------------------------------------------------------------------------

    (c) Issuance of permits. If APHIS approves the application, APHIS 
will issue a permit specifying the conditions applicable to the 
importation of the fruit or vegetable.
    (d) Issuance of oral permits. Oral permits may be issued for 
noncommercial shipments if the commodity is admissible with inspection 
only. Oral permits may be issued for commercial shipments of fruits and 
vegetables arriving in the United States without a specific written 
permit if all applicable entry requirements are met and proof of 
application for a specific written permit has been supplied to an 
inspector.


(Approved by the Office of Management and Budget under control number 
0579-0049)


Sec.  319.56-4  Amendment, denial, or withdrawal of permits.

    (a) The Administrator may amend, deny, or withdraw a permit at any 
time if he or she has determined that conditions exist that present an 
unacceptable risk of the fruit or vegetable introducing quarantine 
pests into the United States. If the withdrawal is oral, the withdrawal 
of the permit and the reasons for the withdrawal will be confirmed in 
writing as promptly as circumstances permit.
    (b) Any person whose permit has been amended, denied, or withdrawn 
may appeal the decision in writing to the Administrator within 10 days 
after receiving the written notification of the decision. The appeal 
must state all of the facts and reasons upon which the person relies to 
show that the permit was wrongfully amended, denied, or withdrawn. The 
Administrator will grant or deny the appeal, in writing, stating the 
reasons for granting or denying the appeal as promptly as circumstances 
permit. If there is a conflict as to any material fact and the person 
who has filed an appeal requests a hearing, a hearing shall be held to 
resolve the conflict. Rules of practice concerning the hearing will be 
adopted by the Administrator. A permit withdrawal will remain in effect 
pending resolution of the appeal or the hearing.

0
31. Section Sec.  319.56-6 is amended as follows:

0
 a. By redesignating footnote 1 as footnote 14.

0
b. By revising paragraphs (b) and (d) to read as follows:


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

* * * * *
    (b) Assembly for inspection. Any person moving fresh fruits and 
vegetables into the United States must offer those agricultural 
products for entry at the U.S. port of first arrival. The owner or the 
agent must make full

[[Page 37923]]

disclosure of the type, quantity, and country of origin of all fruits 
and vegetables in the shipment, either orally for non-commercial 
shipments or on an invoice or similar document for commercial 
shipments, and present that document to an inspector prior to moving 
the fruits or vegetables from the port in accordance with paragraph (d) 
of this section. All fruits and vegetables must be accurately disclosed 
and made available to an inspector for examination. The owner or agent 
must assemble the fruits and vegetables for inspection at the port of 
first arrival, or at any other place designated by an inspector, and in 
a manner designated by the inspector.
* * * * *
    (d) Release for movement. No person may move a fruit or vegetable 
from the U.S. port of first arrival unless an inspector has:
    (1) Inspected the fruit or vegetable and released it;
    (2) Ordered treatment at the port of first arrival and, after 
treatment, released it;
    (3) Authorized movement to another location for treatment, further 
inspection, or destruction;
    (4) Ordered the fruit or vegetable to be re-exported; or
    (5) Waived the inspection.
* * * * *

    Done in Washington, DC, this 18th day of June, 2003.
Bobby R. Acord,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-15908 Filed 6-24-03; 8:45 am]
BILLING CODE 3410-34-P