[Federal Register Volume 78, Number 92 (Monday, May 13, 2013)]
[Proposed Rules]
[Pages 27864-27866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11322]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 78, No. 92 / Monday, May 13, 2013 / Proposed 
Rules  

[[Page 27864]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 305

[Docket No. APHIS-2012-0089]


Cold Treatment for Fresh Fruits and Vegetables; MidAmerica St. 
Louis Airport, Mascoutah, IL

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to allow, under certain conditions, the cold 
treatment of imported fruits and vegetables upon arrival at the 
MidAmerica St. Louis Airport, Mascoutah, IL. We have determined that 
there are biological barriers at this port that, along with certain 
safeguards, would prevent the introduction of fruit flies and other 
insect pests into the United States in the unlikely event that they 
escape from shipments of fruits or vegetables before the fruits or 
vegetables undergo cold treatment. This action would facilitate the 
importation of fruit requiring cold treatment while continuing to 
provide protection against the introduction of fruit flies and other 
insect pests into the United States.

DATES: We will consider all comments that we receive on or before July 
12, 2013.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2012-0089-0001.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2012-0089, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2012-
0089 or in our reading room, which is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. S. Gadh, Senior Risk 
Manager--Treatments, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, 
MD 20737-1236; (301) 851-2018.

SUPPLEMENTARY INFORMATION: 

Background

    The phytosanitary treatments regulations in 7 CFR part 305 set out 
general requirements for certifying or approving treatment facilities 
and for performing treatments listed in the Plant Protection and 
Quarantine (PPQ) Treatment Manual \1\ for fruits, vegetables, and other 
articles to prevent the introduction or dissemination of plant pests or 
noxious weeds into or through the United States. Within part 305, Sec.  
305.6 (referred to below as the regulations) sets out requirements for 
treatment procedures, monitoring, facilities, and enclosures needed for 
performing sustained refrigeration (cold treatment) sufficient to kill 
certain insect pests associated with imported fruits and vegetables and 
with regulated articles moved interstate from quarantined areas within 
the United States.
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    \1\ The PPQ Treatment Manual is available at (http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf).
---------------------------------------------------------------------------

    Most imported fruits or vegetables that require cold treatment 
undergo that treatment while in transit to the United States. However, 
the Animal and Plant Health Inspection Service (APHIS) also allows 
imported fruits or vegetables to undergo cold treatment at an approved 
cold treatment facility in either the country of origin or after 
arrival in the United States at a cold storage warehouse approved by 
the APHIS Administrator.
    In Sec.  305.6, paragraph (b) limits cold treatment facilities to 
those cold storage warehouses approved by the Administrator and located 
in the area north of 39[deg] latitude and east of 104[deg] longitude, 
or under special conditions at one of the following ports, which are 
outside the geographic area stipulated in the regulations: The maritime 
ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, 
MS; Seattle-Tacoma International Airport, Seattle, WA; and Hartsfield-
Atlanta International Airport, Atlanta, GA. The location restrictions 
serve as an additional safeguard against the possibility that fruit 
flies or other pests could escape from imported articles prior to 
treatment and become established in the United States.
    As stated previously, the regulations do allow cold treatment 
facilities to be located outside the geographical area stipulated by 
the regulations. In order to approve those locations, APHIS conducts 
site-specific evaluations and determines whether regulated articles can 
be safely transported to cold treatment facilities under special 
conditions to mitigate the possible escape of pests of concern.

Proposed Additional Port

    APHIS has received a petition from North Bay Produce, Inc., to 
designate the MidAmerica St. Louis Airport, Mascoutah, IL, as an 
approved location for the cold treatment of imported fruits or 
vegetables. In addition, some importers of fruits and vegetables have 
shown considerable interest in locating cold treatment facilities in 
places that are not currently allowed under the regulations. Currently, 
no cold treatment facilities are available near the proposed location. 
An APHIS-approved cold treatment facility in this location would allow 
importers to treat fruits and vegetables arriving from foreign 
locations and requiring a treatment to meet U.S. entry requirements.
    In response to this request, we are proposing to add the MidAmerica 
St. Louis Airport, Mascoutah, IL, to the list of ports that are 
designated as approved locations for cold treatment of imported fruits 
or vegetables. This proposal is based on our determination that there 
are biological barriers in the area of this port that, along with 
certain safeguards, would prevent the introduction of fruit flies and 
other insect pests in the unlikely event that they escape from 
shipments of fruits or vegetables before the fruits or vegetables 
undergo cold treatment.
    To support this action, we have prepared a treatment evaluation 
document (TED) entitled ``Allowing a new cold treatment facility at

[[Page 27865]]

Mascoutah, Illinois, located outside the area currently authorized.'' 
Copies of the TED may be obtained from the person listed under FOR 
FURTHER INFORMATION CONTACT and may be viewed on the Internet on the 
Regulations.gov Web site or in our reading room (see ADDRESSES above 
for instructions for accessing Regulations.gov and the location and 
hours of the reading room). In the TED, we concluded that the pest 
risks posed by the establishment of a cold treatment facility at the 
MidAmerica St. Louis Airport, Mascoutah, IL, outside of the area north 
of 39[deg] latitude and east of 104[deg] longitude, can be adequately 
managed through use of special conditions to mitigate the possible 
escape of pests of concern.

Special Conditions for the MidAmerica St. Louis Airport, Mascoutah, IL

    In addition to the general requirements in Sec.  305.6(a) through 
(g) of the regulations concerning cold treatment, we are proposing to 
apply the following requirements to cold treatment conducted at the 
MidAmerica St. Louis Airport, Mascoutah, IL. These requirements would 
be added to the regulations as a new paragraph (h)(5) of Sec.  305.6.
    In paragraph (h)(5)(i) of Sec.  305.6, we are proposing that bulk 
and containerized consignments of fruits or vegetables arriving for 
cold treatment would have to be cold treated within the area over which 
the U.S. Department of Homeland Security is assigned the authority to 
accept entries of merchandise, to collect duties, and to enforce the 
various provisions of the customs and navigation laws in force.
    Under this proposal, paragraph (h)(5)(ii) would lay out a number of 
conditions that any proposed facility would have to meet, which would 
be agreed upon by the involved parties and included in the facility 
compliance agreement required under paragraph (f) of Sec.  305.6. These 
conditions, which are described below, would be listed in paragraphs 
(h)(5)(ii)(A) through (h)(5)(ii)(F).
     The facility would only be certified if APHIS determines 
that regulated articles would be safely transported to the facility 
from the port of arrival without significant risk that plant pests will 
escape in transit or while the regulated articles are at the facility.
     Bulk consignments (those consignments which are stowed and 
unloaded by the case or bin) of fruit would have to arrive in pest-
proof packaging that prevents the escape of the pests of concern.
     The facility would have to ensure that the pest-proof 
cartons are off-loaded from containers in a safeguarded environment and 
at no time would the articles be removed from the cartons prior to 
treatment.
     Arrangements for treatment would have to be made before 
the departure of a consignment from its port of entry or points of 
origin in the United States. The cold treatment facility and APHIS must 
agree in advance on the route by which consignments are allowed to move 
between the aircraft on which they arrived at the airport and the cold 
treatment facility. The movement of consignments from aircraft to a 
cold treatment facility will not be allowed until an acceptable route 
has been agreed upon.
     The facility would have to have contingency plans, 
approved by the APHIS Administrator, for safely destroying or disposing 
of fruit.
     The facility would have to maintain physical separation of 
treated articles from untreated articles and apply all required 
safeguards (e.g., larger consignments are broken up into smaller boxes 
following treatment and those treated articles are required to be 
packaged in pest-proof containers per an agreement between the 
treatment facility and the importer) before releasing to local markets 
or for movement to other States.
    We believe that the mitigation measures described above, which are 
based on safeguards in place for other cold treatment facilities, would 
prevent the introduction of fruit flies and other plant pests that may 
be in shipments of fruits or vegetables arriving at the MidAmerica St. 
Louis Airport, Mascoutah, IL, for cold treatment.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule is subject to Executive Order 12866. However, 
for this action, the Office of Management and Budget has waived its 
review under Executive Order 12866.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this proposed rule on small entities. Copies of 
the full analysis are available by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see 
ADDRESSES above for instructions for accessing Regulations.gov).
    Based on the information we have, there is no reason to conclude 
that adoption of this proposed rule would result in any significant 
economic effect on a substantial number of small entities. However, we 
do not currently have all of the data necessary for a comprehensive 
analysis of the effects of this proposed rule on small entities. 
Therefore, we are inviting comments on potential effects. In 
particular, we are interested in determining the number and kind of 
small entities that may incur benefits or costs from the implementation 
of this proposed rule.
    This proposed rule would amend the regulations to allow a new cold 
treatment facility to be located at MidAmerica St. Louis Airport, 
Mascoutah, Illinois. The facility is expected to be used mainly to 
treat imported blueberries. While most, if not all, blueberry farms in 
the United States are small entities, we do not expect the rule to 
significantly affect the market for blueberries because the proposed 
facility is not projected to result in a significant increase in the 
quantity of blueberries imported into the United States. The United 
States is the world's largest producer of blueberries and U.S. 
blueberry exports exceed imports four-fold.
    The proposed cold treatment facility is expected to benefit the 
MidAmerica St. Louis Airport and the local economy. The facility is 
expected to result in at least 800 flights of produce requiring cold 
treatment per year, raising at least $8 million in direct income for 
the airport. MidAmerica St. Louis Airport is classified as a small 
entity within the NAICS category of Other Airport Operations (NAICS 
488119), for which the small-entity standard is annual revenue of not 
more than $30 million. Our initial regulatory flexibility analysis 
discusses the expected positive economic effects of the rule for the 
MidAmerica St. Louis Airport and related local businesses.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

[[Page 27866]]

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 305

    Irradiation, Phytosanitary treatment, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements.

    Accordingly, we propose to amend 7 CFR part 305 as follows:

PART 305--PHYTOSANITARY TREATMENTS

0
1. The authority citation for part 305 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 
136a; 7 CFR 2.22, 2.80, and 371.3.

0
2. Section 305.6 is amended as follows:
0
a. In paragraph (b), by adding the words ``MidAmerica St. Louis 
Airport, Mascoutah, IL;'' after the words ``Seattle-Tacoma 
International Airport, Seattle, WA;'' and
0
b. By adding a new paragraph (h)(5) to read as set forth below.


Sec.  305.6  Cold treatment requirements.

* * * * *
    (h) * * *
    (5) Airport of Mascoutah, IL. Consignments of fruits or vegetables 
arriving at the MidAmerica St. Louis Airport, Mascoutah, IL, for cold 
treatment, in addition to meeting all other applicable requirements of 
this section, must meet the following special conditions:
    (i) Bulk and containerized consignments of fruits or vegetables 
arriving for cold treatment must be cold treated within the area over 
which the U.S. Department of Homeland Security is assigned the 
authority to accept entries of merchandise, to collect duties, and to 
enforce the various provisions of the customs and navigation laws in 
force.
    (ii) APHIS will evaluate facility safeguards in light of the plant 
health risks involved and approve the operation of a facility in that 
location subject to the following conditions to be agreed upon by the 
involved parties and included in the compliance agreement required in 
Sec.  305.6(f):
    (A) The facility will only be certified if the Administrator 
determines that the regulated articles could be safely transported to 
the facility from the point of entry or origin without significant risk 
that plant pests will escape in transit to the facility or while the 
regulated articles are at the facility.
    (B) Bulk consignments (those consignments which are stowed and 
unloaded by the case or bin) of fruit must arrive in pest-proof 
packaging that prevents the escape of the pests of concern.
    (C) The facility must ensure that the pest-proof cartons are off-
loaded from containers in a safeguarded environment and at no time are 
the articles to be removed from the cartons prior to treatment.
    (D) Arrangements for treatment must be made before the departure of 
a consignment from its port of entry or points of origin in the United 
States. The cold treatment facility and APHIS must agree in advance on 
the route by which consignments are allowed to move between the 
aircraft on which they arrived at the airport and the cold treatment 
facility. The movement of consignments from aircraft to a cold 
treatment facility will not be allowed until an acceptable route has 
been agreed upon.
    (E) The facility must have contingency plans, approved by the 
Administrator, for safely destroying or disposing of fruits or 
vegetables.
    (F) The facility must maintain physical separation of treated 
articles from untreated articles and apply all required safeguards 
(e.g., larger consignments are broken up into smaller boxes following 
treatment and those treated articles are required to be packaged in 
pest-proof containers per an agreement between the treatment facility 
and the importer) before releasing to local markets or for movement to 
other States.

    Done in Washington, DC, this May 8, 2013.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-11322 Filed 5-10-13; 8:45 am]
BILLING CODE 3410-34-P