[Federal Register Volume 69, Number 21 (Monday, February 2, 2004)]
[Rules and Regulations]
[Pages 4845-4851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2023]



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  Federal Register / Vol. 69, No. 21 / Monday, February 2, 2004 / Rules 
and Regulations  

[[Page 4845]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 300, 301, and 319

[Docket No. 02-071-2]


Cold Treatment of Fruits

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rule as final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended the Plant Protection and Quarantine Treatment Manual, 
which is incorporated by reference into the Code of Federal 
Regulations, by revising the cold treatment schedules under which 
fruits are treated for the Mediterranean fruit fly (Medfly) and other 
specified pests. Based on a review of those treatment schedules, we 
determined that it was necessary to extend the duration of cold 
treatment for Medfly. We also amended the regulations for importing 
fruits and vegetables to provide that inspectors at the port of first 
arrival will sample and cut fruit from each shipment cold treated for 
Medfly to monitor the effectiveness of the cold treatment. The interim 
rule was necessary to protect against the introduction and 
dissemination of Medflies into and within the contiguous United States.

EFFECTIVE DATE: The interim rule became effective on October 15, 2002.

FOR FURTHER INFORMATION CONTACT: Dr. I. Paul Gadh, Import Specialist, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 
140, Riverdale, MD 20737-1231; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Protection and Quarantine Treatment Manual (PPQ Treatment 
Manual), which is maintained by the U.S. Department of Agriculture's 
(USDA) Animal and Plant Health Inspection Service (APHIS), contains 
approved treatment schedules for agricultural commodities and is 
incorporated by reference into the Code of Federal Regulations at 7 CFR 
300.1.
    The PPQ Treatment Manual contains, among other things, cold 
treatment schedules for the treatment of fruits for the Mediterranean 
fruit fly (Medfly). Those schedules are prescribed to treat commodities 
for Medfly, and in some cases other pests, that occur in the regions 
from which the commodities originate.
    In an interim rule effective and published in the Federal Register 
on October 15, 2002 (67 FR 63529-63536, Docket No. 02-071-1), we 
amended the PPQ Treatment Manual by extending the cold treatment 
schedules under which fruits are treated for Medfly and other specified 
pests. In addition, we amended the regulations for importing fruits and 
vegetables to provide that inspectors at the port of first arrival will 
sample and cut fruit from each shipment cold treated for Medfly to 
monitor the effectiveness of the new treatment.
    Comments on the interim rule were required to be received on or 
before December 16, 2002. We received eight comments by that date. The 
comments were from State departments of agriculture, citrus growers, 
and foreign fruit shippers. While some commenters expressed general 
support for the actions taken in the interim rule, all of them raised 
specific concerns or objections regarding certain aspects of the rule. 
These comments are discussed below by topic.

Need for More Research

    All of the commenters stated that APHIS needed to conduct more 
research to either support eliminating treatments of lower temperatures 
and shorter durations or to validate the efficacy of the new treatment 
schedules. Some commenters stated that APHIS had not followed a 
scientific procedure in developing the new treatment schedules and 
requested that APHIS conduct its own research to determine if 
adjustments to the schedules are necessary. One commenter suggested the 
rule be delayed for 6 months, during which time such research could be 
conducted.
    Our analysis of the currently available data, as discussed in an 
analysis prepared by the USDA's Office of Risk Assessment and Cost-
Benefit Analysis (ORACBA) (referred to below as the ORACBA analysis), 
indicates that treatments of shorter durations and lower temperatures 
will not be efficacious in achieving probit 9 security (i.e., a 
survival rate of not more than 0.0032 percent of target pests). 
Although APHIS plans to conduct a comprehensive study involving shorter 
durations of exposure and a range of temperatures including lower 
temperatures, i.e., 33 F and lower, we do not presently 
have enough data available to support a probit 9 level of mortality at 
these temperatures and have removed them from the treatment schedule. 
Currently, there is no timeframe set for this study. It is a time-
consuming process that will depend on the availability of resources. 
Until such time as this additional research is completed, we are 
confident that the new treatment schedule and fruit cutting provisions 
will appropriately mitigate the risk of introducing Medfly into the 
United States. Given the examination of the available cold treatment 
data, as discussed in the ORACBA analysis, and the fruit cutting 
provision as additional security, we see no need to delay 
implementation of the rule.
    One commenter noted that the interim rule stated that APHIS was 
sponsoring research to address the application of cold treatment, but 
failed to discuss this research in detail. The commenter requested more 
information regarding the research APHIS indicated it would sponsor and 
a timeframe for completion.
    APHIS's Center for Plant Health Science and Technology has contract 
work in progress to develop a fluid dynamics computational model of a 
cold treatment chamber that simulates those used in cold treatment. 
When completed, the model will allow us to visualize the actual flow of 
temperature throughout a cold treatment chamber. With the ability to 
visualize factors that influence temperature, such as the effects of 
hold construction, pallet stacking configurations, fruit variety, and 
hot spots (areas within the cold

[[Page 4846]]

treatment chamber where the temperature remains higher than other 
areas), we can better determine those areas within the cargo where 
treatment is most likely to fail in terms of reaching and maintaining 
target temperature. This information will provide a valid basis for 
determining sensor placement within the cargo and will optimize our 
ability to adequately monitor the treatment.
    Following its development, the model will be tested in field 
trials. The South African Government has agreed to assist us with the 
validation and, if they desire, the Government of Spain could also be 
involved. The trials would be designed to determine whether or not the 
model could predict what the cooling rates and temperature fluctuations 
are at various selected locations during the treatment. To do this, a 
number of sensors would be installed in the cargo at the beginning of 
the treatment and, as usual, monitored throughout the voyage. Following 
the treatment, those data would then be compared with the data 
predicted by the model. Based on how closely the two data sets agree, 
the model might need adjustment, which would require further field 
validation trials.
    One commenter requested that the original treatment schedules 
remain in place for all countries exporting fruit to the United States 
except Spain, until a need to modify the treatment was scientifically 
proven. This commenter also suggested that Spain conduct its own tests 
to determine if the Medfly infestation in imported Spanish clementines 
was the fault of the treatment schedule or some other variable that was 
not considered. Another commenter stated that Spain should conduct 
tests specifically regarding how various pests respond to cold 
treatment in its climate.
    As a result of our examination of the currently available data, we 
do not believe there is evidence to support the continued use of the 
previous treatment schedule for the treatment of commodities from any 
country. Since the ineffectiveness of the previous treatment schedule 
may have contributed to the survival of Medfly larvae in imported 
Spanish clementines, we would not be appropriately mitigating the risk 
of Medfly introduction to the Unites States by only applying 
restrictions to Spain. In addition, APHIS cannot impose research 
requirements on other countries. We can, however, ensure that proper 
procedures are followed and the risk of pest introduction is 
appropriately mitigated. In this case, we are confident that the new 
treatment schedules and fruit cutting procedures at the port of first 
arrival effectively mitigate the risk of Medfly introduction.

Research Used by APHIS

    One commenter stated that after reviewing the Australian data cited 
in the ORACBA analysis, there was insufficient evidence that extending 
the treatment period by 2 days and removing treatments at the lower 
temperatures would be sufficient to achieve probit 9 quarantine 
security for all fruits. According to the commenter, oranges or tangors 
(close relatives of clementines) would require 18 days of cold 
treatment at 35.6 F and the Australian data indicated 
that 16 days at 35.6 F is only sufficient for lemons. 
The commenter pointed out that in revised treatment schedule T107-a, 
APHIS allows 14 days at 34 F, 16 days at 35 
F, and 18 days at 36 F.
    APHIS's decision to extend the cold treatment exposure time was not 
based on one particular piece of research, but rather, a number of 
factors including a technical panel's review, the ORACBA analysis 
(which uses a model to combine several different pieces of existing 
research), and our past experience with the interception of live Medfly 
larvae in cold treated clementines from Spain. The Australian work 
cited in the ORACBA analysis, which was primarily intended to provide 
the Japanese Government with data proving efficacy of cold treatment at 
temperatures above 33.8 F so that Australian exported 
fruit that failed at 33.8 F could meet Japanese 
phytosanitary requirements at higher temperatures, used only two 
temperature/time combinations, i.e., 35.6  0.9 
F and 37.4  0.9 F, 
in the study. The 35.6  0.9 F 
corresponded to at or below 36.5 F and 37.4  0.9 F corresponded to at or below 38.3 
F. Using a high number of second-instar fruit fly larvae 
(the most tolerant stage), the Australians demonstrated that 18 days 
exposure of citrus fruit except lemons (which were exposed for 16 days) 
at 35.6  0.9 F was effective 
enough to achieve 100 percent mortality. At 37.4  
0.9 F, this 100 percent mortality was achieved when 
citrus other than lemons was exposed for 20 days (18 days in the case 
of lemons). In our revised treatment schedule T107-a, we require 18 
days at or below 36 F and have not approved cold 
treatment above 36 F, thus we are being somewhat more 
stringent than the Australians in this regard. Treatments of shorter 
durations are done at lower temperatures and we are confident that all 
treatment combinations will achieve probit 9 security.
    One commenter stated that the Australian data reflect that Medfly 
larvae react differently to cold treatment in different types of citrus 
because the same cold treatment period did not result in the same 
mortality in various types of citrus tested. The commenter added that 
the ORACBA analysis included studies done only on apples and lemons. 
The commenter supported longer periods of cold treatment, but stated 
that the data provided by the ORACBA analysis did not directly address 
the question of whether 14 days of cold treatment at 34 
F is sufficient to provide an acceptable level of 
quarantine security for clementines or other varieties of oranges and 
tangors.
    As shown in the PPQ Treatment Manual, our treatments are applicable 
to more than one host and are based on research performed on different 
hosts, not just citrus varieties or species. Hosts for which we have 
inadequate research data are not included in the treatment schedules. 
In addition, the research used in the ORACBA analysis was not conducted 
solely on apples and lemons. The analysis considered studies using a 
variety of fruits. For example, Nel (1936) used grapes, nectarines, 
peaches, and plums, and Hill et al. (1988) used Valencia and Navel 
oranges as host material.

The Patagonia Region

    Some commenters from shipping organizations within the Patagonia 
region of South America expressed concern that the interim rule did not 
take into account the phytosanitary practices that are employed in that 
region. These commenters stated that the region has been shipping fruit 
to the United States under the previous treatment schedules for the 
past 20 years without a single detection of fruit fly larvae--dead or 
alive--and should not have to comply with the increased requirements of 
the new treatment schedule.
    A few commenters stated that the Patagonia region should be 
recognized as an area free from fruit flies and should therefore not be 
subject to the revised treatment schedules. Some stated that the region 
has an effective fruit fly control and eradication program in place. In 
addition, recent trapping programs in the region have verified the 
total absence of all species of Anastrepha spp. fruit flies.
    Prior to live Medfly larvae being intercepted in clementines from 
Spain in November and December 2001, there had never been multiple 
confirmed finds of live Medfly larvae in fruit of any kind that had 
been legally imported into the mainland United States from

[[Page 4847]]

any source since the previous cold treatment schedule was implemented 
more than 40 years ago. These interceptions forced us to reexamine the 
effectiveness of our cold treatment schedules. After an evaluation, a 
panel concluded that the previously approved cold treatment schedule 
provided a high level of Medfly mortality, but did not achieve a probit 
9 level quarantine security in all cases. The panel's recommendation, 
which was supported by a quantitative analysis of available data, was 
that there was uncertainty as to whether treatments of less than 14 
days and at temperatures in the 32-33 F range would 
achieve the probit 9 level of security. Therefore, in order to protect 
the United States against the introduction of Medfly, we revised our 
Medfly treatment schedules based on the available scientific evidence 
in order to achieve a probit 9 level of security.
    We have received data suggesting that certain areas in the 
Patagonia region are free of fruit flies. We are presently reviewing 
the information and working with Argentine officials to establish the 
boundaries of such areas. If, upon completion of our review, we 
determine that a change in the status of this region is warranted, we 
will initiate the necessary regulatory actions to recognize the fruit-
fly-free status of the region.

General Comments

    One commenter questioned APHIS's actions in implementing the new 
treatment schedule and resuming imports of Spanish clementines when 
APHIS acknowledged it did not know if the Medfly outbreak was due to 
faults in the cold treatment application process or with the treatment 
schedule itself. The commenter stated that both levels of larval 
infestation and an inadequate treatment schedule may have been 
responsible for the Medfly larvae discovery in Spanish clementines, and 
lengthening the treatment schedule only addressed one of these factors. 
Another commenter asked if APHIS planned to conduct any research on the 
point at which cold treatment fails, i.e., if the level of larval 
infestation could overwhelm cold treatment.
    We made revisions to the cold treatment schedules based on the 
recommendations of our technical panel and after considering the ORACBA 
analysis, which analyzed the available information in support of a 
probit 9 level of mortality. We also excluded those temperature/
duration combinations from the revised treatment schedules for which 
enough scientific support was not available for probit 9 mortality. As 
an additional precaution in the Spanish clementine final rule (see 67 
FR 64702-64739, Docket No. 02-023-4, published October 21, 2002), we 
required fruit cutting pre- and post-treatment in order to assess the 
effectiveness of the treatment. In the cold treatment interim rule that 
is the subject of this affirmation, we required only post-treatment 
fruit cutting to evaluate the effectiveness of the new treatment 
schedules. If during the post-treatment fruit cutting process we 
consistently find a number of dead larvae in a particular treated 
article or in treated articles from a particular region, we will 
reexamine if there is a need for fruit cutting prior to cold treatment 
taking place. For these reasons, we do not believe it is necessary to 
conduct the type of research suggested by the commenter. In addition, 
our inspections of cold treated fruit at the ports of arrival and past 
interception records (or lack thereof) demonstrate that cold treatment 
has been effective over the years in preventing Medfly introduction 
into the United States.
    One commenter stated that the USDA should provide shippers with a 
written treatment verification protocol and shippers should be required 
to provide USDA documentation to demonstrate that cold treatment is 
administered as prescribed.
    The regulations in Sec. 319.56-2d, ``Administrative instructions 
for cold treatments of certain imported fruits,'' contain detailed 
requirements regarding the application and verification of cold 
treatments. The requirements for commodities cold treated in transit 
include maintaining a continuous, automatic temperature record under 
lock from at least four locations in each refrigerated compartment, 
providing charts from the temperature recording apparatus to an 
inspector at the port of arrival as proof the appropriate treatment 
schedule was followed, and requiring the responsible ship's officer to 
sign the temperature chart at least once during every 24-hour period.
    One commenter stated that it was inappropriate for APHIS to resume 
imports of Spanish clementines based on the interim rule, which was 
made effective before the public had an opportunity to comment. In 
doing this, the commenter stated, APHIS did not follow a sound 
scientific process.
    The extended treatment schedule first appeared in our proposed rule 
for Spanish clementines (see 67 FR 45922-45933, Docket No. 02-023-3, 
published March 22, 2002) as a result of comments made on the risk 
assessment that was prepared for that proposed rule and made available 
for comment in a notice published April 16, 2002, in the Federal 
Register (67 FR 18578-18579, Docket No. 02-023-1). A panel of experts 
subsequently concluded that there was uncertainty as to whether 
treatments of less than 14 days and at temperatures in the 32-33 
F range will achieve the probit 9 level of security; we 
therefore eliminated the two shortest duration treatments from the 
treatment schedule in the interim rule that is the subject of this 
affirmation. While we acknowledged that further research was needed, we 
implemented the new treatment schedule in addition to fruit cutting 
immediately in order to mitigate the risk of introducing Medfly into 
the United States. The changes to the cold treatment schedules, which 
were supported by the panel's research, were promulgated in an interim 
rule in order for those treatment schedules to be effective prior to 
the commencement of the Spanish clementine shipping season. However, 
the revised treatment schedules apply to all commodities cold treated 
for Medfly, not only Spanish clementines, as recommended by the panel 
based on its findings.
    One commenter stated that APHIS should reassess its willingness to 
consider import requests for fresh fruits and vegetables from disease 
and pest-infested areas of the world. The commenter stated that a 
tremendous burden exists on the enforcement personnel of the Agency 
with having to deal with possible illegal importation of pests, and 
that by limiting importation to commodities grown where pests or 
diseases are present in small numbers, or not at all, would greatly 
reduce this burden.
    APHIS has stated in the past that if zero tolerance for pest risk 
were the standard applied to international trade in agricultural 
commodities, it is quite likely that no country would ever be able to 
export a fresh agricultural commodity to any other country. There will 
always be some degree of pest risk associated with the movement of 
agricultural products; APHIS's goal is to provide the protection 
necessary to prevent the introduction and dissemination of plant pests 
into the United States. In this case, we believe that the revised 
treatment schedule and the fruit cutting provisions will achieve that 
goal.
    One commenter suggested that APHIS review all cold treatment 
schedules in light of the discovery of at least one live larva of false 
codling moth in clementines from South Africa in 2002. There has been 
no overall review of the efficacy of cold treatment protocols in light 
of the interceptions of live insects following treatment.

[[Page 4848]]

    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 subsequently 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 
focused on the clementine shipments that contained live Medfly larvae 
and yielded no evidence that the treatment was improperly applied.
    In response to interceptions of the false codling moth in cold 
treated citrus from South Africa, we have taken three actions to help 
ensure fruit 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. The interception noted by the commenter was an isolated 
event and is not reflective of failure of the cold treatment.

Other Comments

    In addition to the comments discussed above, one commenter 
questioned the effectiveness of APHIS's enforcement of the limited 
distribution of Spanish clementines. We consider this comment to be 
outside the scope of this rulemaking because the requirements governing 
the distribution of Spanish clementines were not part of the interim 
rule.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule without 
change.
    This action also affirms the information contained in the interim 
rule concerning Executive Orders 12866 and 12988 and the Paperwork 
Reduction Act.
    Further, for this action, the Office of Management and Budget has 
waived its review under Executive Order 12866.

Regulatory Flexibility Act

    This rule affirms an interim rule that amended the PPQ Treatment 
Manual, which is incorporated by reference into the Code of Federal 
Regulations, by revising the cold treatment schedules under which 
fruits are treated for Medfly and other specified pests. Based on a 
review of those treatment schedules, we determined that it was 
necessary to extend the duration of cold treatment for Medfly \1\ in 
order to protect against the introduction or dissemination of Medfly 
into and within the United States.
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    \1\ Certain commodities that are subject to the extended cold 
treatment, i.e., commodities that are subject to treatment for 
Medfly and Anastrepha spp. (except Anastrepha ludens), will not 
necessarily be subject to additional days of cold treatment due to 
the fact that treatment for Anastrepha spp. is already longer than 
the extended Medfly treatment requires. Thus, such commodities may 
be subject to 1 additional day of treatment, or none at all, 
depending on the temperature at which they are held. Nevertheless, 
for the purposes of this analysis, we assume that all commodities 
will be subject to additional days of treatment.
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    In addition, we amended the regulations for importing fruits and 
vegetables to provide that inspectors at the port of first arrival 
sample and cut fruit from each shipment cold treated for Medfly to 
monitor the effectiveness of the cold treatment. If a single live 
Medfly in any stage of development is found, the shipment will be held 
until an investigation is completed and appropriate remedial actions 
have been implemented. If APHIS determines at any time that the 
prescribed cold treatments do not appear to be effective against 
Medfly, APHIS may suspend the importation of fruit from the originating 
country and conduct an investigation into the cause of the deficiency. 
The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the Secretary 
of Agriculture to prohibit or restrict the importation, entry, and 
interstate movement of any plant, plant product, article, or means of 
conveyance if the Secretary determines that the prohibition or 
restriction is necessary to prevent the introduction or dissemination 
of a plant pest into or within the United States.
    In accordance with 5 U.S.C. 603, we performed an initial regulatory 
flexibility analysis for the interim rule, which was included in the 
interim rule and which invited submission of comments and data to 
assist in a comprehensive analysis of the economic effects of the 
interim rule on small entities. More specifically, we requested 
information on the number and kind of small entities that may incur 
benefits or costs from the implementation of the interim rule. No such 
information was submitted in the comments that we received. Based on 
the information we have, there is no basis to conclude that adoption of 
this rule will result in any significant economic impact on a 
substantial number of small entities. For this document, we have 
prepared a final regulatory flexibility analysis, which is set out 
below.
    Fruit cutting and inspection charges associated with the interim 
rule will more than likely be small. APHIS, in a regulatory impact 
analysis (RIA) conducted for a rulemaking related to the importation of 
clementines from Spain (referred to below as the clementine RIA),\2\ 
indicates that bulk shipments of fruit will more than likely pass 
inspection because the proportion of fruit infested with live Medfly 
will more than likely be extremely low after the application of the 
revised cold treatment schedules. In addition, the amount of fruit that 
is cut in the United States will more than likely be low relative to 
the value of imports, amounting to between 0.24 percent and 0.31 
percent of gross import value. As a result, we state at the outset that 
costs associated with cutting and inspecting fruit will not have a 
significant negative economic impact on a substantial number of small 
importers.
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    \2\ ``Amending Import Rules for Clementines from Spain: Final 
Regulatory Impact Analysis.'' Animal and Plant Health Inspection 
Service, Riverdale, MD. Available on the Internet at http://www.aphis.usda.gov/lpa/issues/clementine/clementines.html.
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    The United States Small Business Administration (SBA) defines a 
small fruit importer (NAICS 424480, Fresh Fruit and Vegetable Merchant 
Wholesalers) as one with 100 or fewer employees. According to the most 
recent information available from the SBA's Office of Advocacy, a total 
of 5,403 firms comprised the ``Fresh Fruit and Vegetable Merchant 
Wholesalers'' category in 1999.\3\ Seventy-eight percent of these firms 
(4,227) employed 20 or fewer individuals, and 99 percent of the firms 
had 500 or fewer employees. Clearly, the majority of fruit and 
vegetable wholesalers are small entities, having 100 or fewer 
employees. Although we lack specific information regarding the number 
of entities, large or small, that are likely to be affected by the rule 
(i.e., U.S. importers of fruits from countries where Medfly is known to 
exist), we expect that the majority of those entities are small. 
However as we demonstrate below, economic impacts associated with the 
rule are not expected to be significant.
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    \3\ See http://www.sba.gov/advo/stats/us99_n6.pdf.
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    Import data for 1996-2000 for fruits that require cold treatment 
for Medfly under the revised schedule T107-a are shown in table 1. 
Import data are not reported separately for all of the fruits

[[Page 4849]]

that are subject to cold treatment for Medfly, so similar fruits are 
combined into categories in table 1.\4\ Import data for litchis, 
pomegranates, and carambola are not available, and there were no 
imports of mountain papaya and very few imports of cherries that 
required cold treatment for Medfly during 1996-2000; therefore, data 
for these fruits are not included in table 1.
---------------------------------------------------------------------------

    \4\ USDA-FAS, ``U.S. imports and import values for various 
fruit.'' Available through the U.S. Trade Internet System at: http://www.fas.usda.gov/ustrade/.
---------------------------------------------------------------------------

    In order to estimate costs associated with extending Medfly cold 
treatment periods, it is necessary to estimate 2002 import levels, 
because additional cold treatment expenses vary with the amount of 
imported fruit. We base the 2002 import level for ethrogs on the 5-year 
average, because annual growth rates were extremely volatile during 
1996-2000. We base the 2002 import level for pears and quinces on the 
2000 import level because the import data provided little guidance 
regarding a likely value for 2002. We base the 2002 import level for 
clementines, ortaniques, and tangerines on the 2000 import level and 
annual import growth in 2000 because growth rates were highly volatile 
during the preceding years and imports apparently leveled off in 
1999.\5\ We report estimates of 2002 import levels for these and the 
remaining fruits in table 1.
---------------------------------------------------------------------------

    \5\ In particular, expected imports for 2002 are given by x(1 + 
y)\2\, where x denotes the import value for 2000 and y denotes 
import growth for 2000.

                  Table 1.--Fruit Imports That Are Subject To T107 Cold Treatment For Medfly *
----------------------------------------------------------------------------------------------------------------
                                                   Average      Weighted     Average                   Expected
                                                    import       import       import     Percentage    imports
                   Commodity                        level      level ($ /     value       of world       2002
                                                  (1,000 kg)      kg)        ($1,000)     imports     (1,000 kg)
----------------------------------------------------------------------------------------------------------------
Apple..........................................        4,128        $0.86       $3,550         2.52    \1\ 4,128
Apricot........................................            4         2.48           10         0.23        \1\ 4
Clementine, ortanique, and tangerine...........       52,176         1.43       74,354        86.32   \2\ 95,952
Ethrog.........................................          160         2.79          446        32.17      \1\ 160
Grape..........................................       33,399       426.18       14,234         3.29   \3\ 52,369
Grapefruit and pummelo.........................          356         0.91          323         3.31      \1\ 356
Kiwi...........................................        6,080         1.05        6,384         6.91    \1\ 6,080
Orange.........................................        6,361         1.07        6,776         8.34    \1\ 6,361
Peach and nectarine............................           10         0.95           10         0.02       \3\ 17
Pear and quince................................       35,915         0.96       34,478        44.81   \4\ 58,228
Plum, loquat, persimmon, and plumcot...........          124         0.99          123         0.54     \4\ 513
----------------------------------------------------------------------------------------------------------------
* Imports, prices, and percentages of world imports are averages for 1996-2000. Prices are weighted averages
  converted to 2002 dollars, using the consumer price index for fresh fruit (from U.S. Bureau of Labor
  Statistics). Data are from USDA-FAS, ``U.S. imports and import values for various fruit,'' except for grapes,
  which are from Bureau of Census data: 080610, U.S. fresh grape imports. Quantity data for grapes are in cubic
  meters; grape prices are in dollars per cubic meter.
\1\ Five-year average.
\2\ Based on the 2000 import level and annual import growth for 2000.
\3\ Based on the 2000 import level and average annual import growth for 1999 and 2000.
\4\ The 2000 import level.

    As shown in table 1, very low percentages of apple, apricot, 
cherry, grape, grapefruit and pummelo, kiwi, mountain papaya, orange, 
peach and nectarine, and plum, loquat, persimmon, and plumcot imports 
undergo cold treatment for Medfly; as a result, the interim rule will 
likely not affect a substantial number of small importers of these 
fruits. Thirty-two percent of ethrogs, 44 percent of pears and quinces, 
and 86 percent of clementines, ortaniques, and tangerines must be cold 
treated for Medfly. Therefore, the interim rule may affect a 
substantial number of U.S. importers of these fruits, and we estimate 
economic impacts for these fruits. We do not estimate economic impacts 
for the remaining fruits because it is unlikely that a substantial 
number of small importers of those fruits will be significantly 
affected by the interim rule. Furthermore, economic impacts for 
ethrogs, pears and quinces, and clementines, ortaniques, and tangerines 
can be considered as representative of the economic impacts for the 
other fruits.
    The overwhelming majority of cold-treated fruit imports are treated 
aboard ship while in transit to the United States, although treatment 
can also be carried out at authorized ports. When cold treatment is 
conducted in transit, the treatment period must be met before 
unloading. For countries with sailing times to the United States longer 
than the extended treatment periods, the interim rule will only lead to 
increases in cold treatment costs. For countries with sailing times to 
the United States shorter than the extended treatment periods, the 
interim rule will lead to increases in cold treatment and shipping 
costs. To account for the extended treatment periods in these 
instances, vessels will either adjust sailing times to coincide with 
the length of the treatment period, sit at the dock, or go into 
anchorage near the U.S. port. As a result, labor, fuel, and opportunity 
costs associated with delaying shipments of other cargoes will more 
than likely be added to shipping charges.
    Costs associated with extending treatment periods have been 
estimated for clementine imports from Spain in the clementine RIA cited 
earlier in this analysis. We use the same parameters and methods to 
estimate additional cold treatment expenses for clementines, 
ortaniques, and tangerines. It costs approximately $0.50 per day to 
cold treat a pallet of fruit at U.S. ports. This provides an 
approximate upper bound on cold treatment costs because most fruits are 
cold treated in transit, which may be less expensive on average. We 
therefore use this as our unit cost to calculate cold treatment 
expenses in the analysis.
    Historically, Spain has exported clementines, ortaniques, and 
tangerines to the United States under the 11 day (33 F) 
or 12 day (34 F) cold treatment schedules. As a result, 
Spanish clementines, ortaniques, and tangerines shipped to the United 
States will undergo at least 2 to 3 days (34 F) of

[[Page 4850]]

extra cold treatment. We assume the average bulk shipment will undergo 
an additional 2.5 days of cold treatment. The following daily charges 
will likely be added to the cost of shipping clementines, ortaniques, 
and tangerines to the United States: $10,000 chartering fee (although 
this fee is highly variable depending on the availability of bulk 
ships); $2,160 docking fee ($0.27 per metric ton with an average ship 
size of 8,000 metric tons); $990 fuel at anchorage fee (five to six 
tons at $180 per ton); and $0.50 per pallet cold treatment fee.
    These cost figures are based on recent charges quoted by a 
representative from Lauritzen, a company that specializes in the bulk 
shipment of fruit. Ninety percent of clementines, ortaniques, and 
tangerines shipments come into the United States in bulk shipments. 
Using a bioeconomic model, which incorporates variation in clementines 
designated for export to the United States and fruit cutting and 
rejection of shipments in Spain according to farm-level variation in 
numbers of fruit infested with Medflies, additional shipping and cold 
treatment expenses averaged $1.23 million ( 
$15,000, with 95 percent confidence). U.S. imports of clementines 
averaged 88,461 metric tons ( 1,042 metric tons). 
As a result, total regulatory expenses were $13.92 per metric ton, or 
$5.57 per metric ton per day. Average import price in the United States 
was $1.05 per kilogram, thus import value averaged $92.65 million. 
Total regulatory expenses were therefore 1.33 percent of gross value.
    These estimates can be used to estimate regulatory costs associated 
with shipments of clementines, ortaniques, and tangerines from Spain, 
Morocco, Israel, and Italy. Applying the $13.92 per metric ton fee to 
95,952 metric tons (table 1), total regulatory costs, assuming fruits 
are cold treated for an additional 2.5 days on average, are $1.34 
million. To determine whether these costs are significant, we estimated 
the value of clementine, ortanique, and tangerine imports for 2002 
using the Spanish clementine import demand curve estimated in the 
clementine RIA. Plugging in the expected 2002 import level and 
converting the price to 2002 dollars using the consumer price index for 
oranges, including tangerines,\6\ gives a price of $0.84 per 
kilogram.\7\ Using this expected price, the expected value of imports 
for 2002 is approximately $78.47 million. Additional treatment expenses 
associated with the interim rule amount to only 1.7 percent of this 
total and, as a result, the interim rule will likely not have a 
significant negative economic impact on small importers of clementines, 
ortaniques, and tangerines, even in the unlikely event that importers 
bear the entire economic burden.\8\
---------------------------------------------------------------------------

    \6\ U.S. Bureau of Labor Statistics, ``Consumer price index--
oranges, including tangerines, not seasonally adjusted.'' Available 
on the Internet at http://data.bls.gov/labjava/outside.jsp?survey=cu.
    \7\ The y-intercept of the demand curve is $3.71 and the 
coefficient on kilograms of imports is -3.01E-08.
    \8\ This would be the case, for example, if import demand was 
perfectly inelastic and export supply was perfectly elastic. 
Available data indicate that import demand is elastic and that 
export supply is not perfectly elastic.
---------------------------------------------------------------------------

    We use the same parameters and methods to estimate additional cold 
treatment expenses for ethrogs, pears, and quinces under the assumption 
that these fruits and clementines, ortaniques, and tangerines have 
roughly the same dimensions. For ethrogs, assuming an additional 2.5 
days of cold treatment and shipping expenses, total regulatory costs 
for 2002 came to $2,227. This amounts to only 0.5 percent of the 
estimated value of ethrog imports for 2002 ($446,400), which is based 
on the estimated import level (160 metric tons) and the weighted 
average price ($2.79 per kilogram) during 1996-2000 (see table 1). As a 
result, the interim rule will more than likely not have a significant 
negative economic impact on small importers of ethrogs.
    For pears and quinces, additional cold treatment expenses for 2002 
came to $1.3 million, which amounts to 2.32 percent of the estimated 
value of pear and quince imports for 2002 ($56 million), based on the 
estimated import level (58,228 metric tons) and weighted average price 
($0.96 per kilogram) during 1996-2000 (see table 1). During 1996-2000, 
95 percent of the pear and quince imports from regions with Medfly came 
from Argentina, and the remainder came from China, South Africa, and 
Spain. The direct sailing time from Argentina is approximately 10 days, 
which is 4 days less than the shortest treatment period. As a result, 
the interim rule will add an additional 4 days of cold treatment and 
shipping charges for shipments of pears and quinces to the United 
States from Argentina. Total regulatory expenses for 2002 are $1.30 
million, which amounts to 2.32 percent of the estimated value of pear 
and quince imports for 2002 ($56 million), based on the estimated 
import level (58,228 metric tons) and weighted average price ($0.96 per 
kilogram) during 1996-2000 (table 1).
    Countries that import citrus from the United States may change 
their cold treatment guidelines to reflect the changes being made to 
our cold treatment requirements; however, such changes would only 
affect U.S. exporters in the event of a Medfly outbreak in the 
continental United States. Indirect impacts of the interim rule, 
therefore, are highly uncertain and depend on the probability that 
Medflies are introduced and become established, as well as the regional 
extent of outbreaks and the efficiency with which they are controlled 
and eradicated. Because potential economic impacts on U.S. fruit 
importers are low relative to import values and because Medfly 
outbreaks within the United States will more than likely be confined to 
particular areas and eradicated efficiently, the interim rule will 
likely not have a significant negative economic impact on a substantial 
number of small exporters in the United States. However, in the event 
of a Medfly outbreak, exporters who wish to export affected commodities 
from areas quarantined for Medfly should expect to pay an additional 
$5.57 per metric ton per day of extra cold treatment. For example, 
exports from quarantined areas on the U.S. west coast to Asia would 
have to undergo an additional 2.5 days of cold treatment; therefore, 
each metric ton of affected produce would cost an additional $13.92 to 
ship. The same cost schedule applies to affected commodities on the 
U.S. east coast destined for European markets. Because shipment times 
from the U.S. west coast to Europe and from the U.S. east coast to Asia 
are longer than the revised cold treatment periods, the interim rule 
would have no impact on the cost schedules associated with those 
exports.

Summary

    In our analysis, we estimate additional treatment expenses 
associated with the interim rule as being between 0.5 percent (for 
ethrogs) and 2.32 percent (for pear and quince) of the expected value 
of imports for 2002. Similarly, the amount of fruit that is cut in the 
United States will more than likely be low relative to the value of 
imports, amounting to between 0.24 percent and 0.31 percent of gross 
import value. Based on our analysis, we have no reason to expect that 
the requirements of the interim rule will have a significant economic 
impact on a substantial number of small U.S. fruit importers, including 
small importers of ethrogs, clementines, ortaniques, pears, quinces, 
and tangerines. We are unable to definitively state that this will be 
the case, however, because we lack specific information on the number 
and kind of small entities that may incur benefits or costs from the 
implementation of the

[[Page 4851]]

interim rule, despite our request in the interim rule for such 
information.
    The interim rule contained no new information collection 
requirements under the Paperwork Reduction Act.

List of Subjects

7 CFR Part 300

    Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

7 CFR Part 319

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

7 CFR Chapter III

0
Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 7 CFR parts 300, 301, and 319 and that was 
published at 67 FR 63529-63536 on October 15, 2002.

    Authority: 7 U.S.C. 166, 450, and 7701-7772; 21 U.S.C. 136 and 
136a; 7 CFR 2.22, 2.80, and 371.3.
    Section 301.75-15 also issued under Sec. 204, Title II, Pub. L. 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also 
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 
U.S.C. 1421 note).

    Done in Washington, DC, this 27th day of January, 2004.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-2023 Filed 1-30-04; 8:45 am]
BILLING CODE 3410-34-P