Importation of Fruits and Vegetables

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 300 and 319

[Docket No. 93-121-2]

Importation of Fruits and Vegetables

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 upon arrival at the port of Wilmington,

NC. We have determined that in the Wilmington, NC, area, there are

climatic and biological barriers that are adequate to prevent the

introduction of certain plant pests into the United States in the event

they escape from shipments of fruit before undergoing cold treatment.

We are also proposing to delete cold treatments in the regulations and

replace them with a reference to cold treatments in the Plant

Protection and Quarantine Treatment Manual, which is incorporated by

reference.

DATES: Consideration will be given only to comments received on or

before June 13, 1994.

ADDRESSES: Please send an original and three copies of your comments to

Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, room 804,

Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782. Please

state that your comments refer to Docket No. 93-121-2. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Victor Harabin, Head, Permit Unit,

Port Operations, Plant Protection and Quarantine, APHIS, USDA, room

631, Federal Building, 6505 Belcrest Road, Hyattsville, MD 20782; (301)

436-8645.

SUPPLEMENTARY INFORMATION:

Background

The Fruits and Vegetables regulations, contained in 7 CFR 319.56

through 319.56-8 (referred to below as ``the regulations''), prohibit

or restrict the importation of fruits and vegetables to prevent the

introduction and dissemination of injurious insects, including fruit

flies, that are new to or not widely distributed in the United States.

The Animal and Plant Health Inspection Service (APHIS) of the U.S.

Department of Agriculture administers these regulations.

Under the regulations, APHIS allows certain fruits to be imported

into the United States if they undergo sustained refrigeration (cold

treatment) sufficient to kill certain insect pests. Cold treatment

temperature and refrigeration period requirements vary according to the

type of fruit and the pests involved.

Most imported fruit that requires cold treatment undergoes cold

treatment in transit to the United States. However, APHIS allows

imported fruit to undergo cold treatment after arrival in the United

States at certain ports designated by APHIS.

Currently, cold treatment is limited to ports in the northern

United States because APHIS has determined that insect pests escaping

from shipments of imported fruit after arrival in the United States

would be unable to survive winter weather conditions in the north. The

following ports are currently authorized by APHIS to conduct cold

treatment on imported fruit: Atlantic ports north of, and including,

Baltimore, MD; ports on the Great Lakes and St. Lawrence Seaway;

Canadian border ports on the North Dakota border and east of North

Dakota; and, for air shipments, Washington DC, at Baltimore-Washington

International and Dulles International airports.

Recently, we received petitions from individuals at the ports of

Wilmington, NC, and Gulfport, MS, requesting that we amend the

regulations to allow cold treatment to be conducted at these ports. On

November 12, 1993, in response to these petitions, we published in the

Federal Register (58 FR 59953, Docket No. 93-121-1) an advance notice

of proposed rulemaking requesting public comment on whether we should

allow cold treatment at ports in the Southern United States and in

California.

We solicited comments concerning this notice for a 45-day period

ending on December 27, 1993. During that period, we received four

comments, three from State governments and one from a grower

organization. Two comments opposed allowing cold treatment at ports in

the Southern United States and California, arguing that allowing such

treatments would place California and Florida citrus crops at too great

a risk of fruit fly infestation. Another comment requested that we

perform a detailed pest-risk analysis before deciding whether to allow

cold treatment at southern and California ports. Another comment

supported allowing cold treatment at the port of Wilmington, NC.

While we are still considering whether to allow cold treatment at

other ports in the Southern United States and California, we are now

proposing to allow cold treatment of certain fruit, under certain

conditions, at the port of Wilmington, NC. We have determined that in

the Wilmington, NC, area, there are climatic and biological barriers

adequate to prevent introduction of certain plant pests into the United

States in the event they escape from shipments of fruit before

undergoing cold treatment. Also, we are proposing to impose additional

special conditions regarding cold treatment at Wilmington, NC, that

would further reduce the risk of fruit fly introduction.

In addition to meeting the requirements in Sec. 319.56-2d of the

regulations regarding cold treatment, the port of Wilmington, NC, cold

treatment facilities would be required to operate under the following

additional special conditions:

1. Bulk shipments (those shipments which are stowed and unloaded by

the case or bin) of fruit arriving for cold treatment must be packaged

in fly-proof packaging that prevents the escape of adult, larval, or

pupal fruit flies.

2. Bulk and containerized shipments of fruit arriving at the port

of Wilmington, NC, for cold treatment must be cold-treated within the

port, that is, the area over which the Bureau of Customs 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.

3. Advance reservations for cold treatment space at the port of

Wilmington, NC, must be made prior to the departure of a shipment from

its port of origin.

We believe these requirements would reduce the risk of fruit fly

introduction into the United States in the event infested shipments of

fruit entered the port of Wilmington, NC.

Draft Risk Assessment Regarding Cold Treatment

This proposal to allow cold treatment of fruit under certain

conditions at the port of Wilmington, NC, is based, in part, on a draft

document, prepared by APHIS, assessing the pest risks associated with

allowing cold treatment of tropical fruit fly host materials at certain

United States ports. Some of the risk mitigation measures discussed in

the draft are included in this proposal as requirements for the port of

Wilmington, NC. Copies of this draft document may be obtained from Mr.

Victor Harabin at the address listed under FOR FURTHER INFORMATION

CONTACT.

Plant Protection and Quarantine (PPQ) Treatment Manual

We would revise the PPQ Treatment Manual, which has been

incorporated by reference into the Code of Federal Regulations at 7 CFR

300.1, to reflect the addition of Wilmington, NC, to the list of ports

where cold treatment of imported fruits can be conducted, under certain

conditions, upon arrival.

Miscellaneous

We are also proposing to replace the four cold treatment schedules

currently listed in Sec. 319.56-2d(a) with a single reference to the

Plant Protection and Quarantine (PPQ) Treatment Manual, which is

incorporated by reference at 7 CFR 300.1. The cold treatments listed in

the PPQ treatment manual are applicable for any fruit required to be

cold treated under Sec. 319.56-2d of the regulations.

Also as a nonsubstantive editorial change, we are proposing to

remove and reserve the regulations under Sec. 319.56-2q, regarding

conditions governing the entry into the United States of pummelo from

Israel, and to add pummelo from Israel to the list, under Sec. 319.56-

2x, of fruits and vegetables requiring treatment as a condition of

entry into the United States. This change would simplify the

regulations by placing pummelo from Israel on a list of commodities

with similar entry requirements, but would not revise current

requirements concerning the entry into the United States of pummelo

from Israel.

We are also proposing to make other nonsubstantive changes to the

regulations for the sake of clarity.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

The rule has been determined to be not significant for purposes of

Executive Order 12866, and, therefore, has not been reviewed by the

Office of Management and Budget.

We are proposing to allow, under certain conditions, cold treatment

of imported fruit upon arrival at the port of Wilmington, NC. As a

result of this proposal, a number of different fruits could be imported

into Wilmington, NC. Specifically, officials of the North Carolina

State Ports Authority in Wilmington, NC, anticipate that apples,

grapes, and pears from Argentina, Brazil, and South Africa would be

imported and cold treated at the port of Wilmington, NC.

Approximately 20 million pounds of each fruit could be imported

annually into Wilmington, NC, as a result of this rule, though we

anticipate the amount would be much smaller. While some of the fruit

arriving at Wilmington, NC, would be imported in addition to the

present volume of annual imports into the United States, some merely

would be shipments diverted from other ports also approved to conduct

cold treatment on arrival. In the following analysis of the potential

impact of this action on domestic producers of apples, grapes and

pears, in order to demonstrate the greatest possible economic impact,

we have assumed that the maximum amount of fruit would be imported into

Wilmington, NC, for cold treatment, and further, that those commodities

would be imported in addition to the present volume of annual imports

into the United States.

Also in the following analysis, we have used published price

flexibilities to estimate the potential economic effects of allowing

apples, grapes, and pears to be cold treated at Wilmington, NC;

flexibilities are used to estimate relationships between changes in

supply and subsequent changes in price.

Apples

In 1987, 36,718 farms in the United States, of which 1,186 were in

North Carolina, harvested apples. Although it is not known how many of

these farms could be classified as small entities (annual gross

receipts of $0.5 million or less, according to Small Business

Administration (SBA) size standards), it is likely that most would. In

1992, domestic farms produced almost 5.78 billion pounds of apples for

the fresh market, with an estimated value of $1.13 billion.

If the volume of apples imported into Wilmington, NC, for cold

treatment were to reach 20 million pounds, it would constitute about

7.5 percent of current total imports into the United States, about 0.35

percent of current domestic production and about 0.33 percent of the

current total apple supply in the United States (domestic and imports).

Assuming that a 0.33 percent increase in the supply of apples would

lead to a decrease of about 0.20 percent in the domestic price of

apples (using a price flexibility for apples of -0.590, based on all

Eastern States' sales of North Carolina apples), we estimate that this

increase in supply would result in a price decrease of about $0.038 per

hundredweight (cwt), or $0.00038 per pound, from an original price of

$0.195 per pound. As a result of the price decrease, there could be a

decrease in total revenue to U.S. apple producers of about $2.20

million, which is roughly 0.20 percent of the original total revenue of

$1.13 billion. We anticipate, therefore, that allowing apples to be

cold treated at Wilmington, NC, would not have a significant economic

impact on domestic producers.

Grapes

In 1987, 23,236 farms in the United States, of which 286 were in

North Carolina, harvested apples. In 1992 domestic farms produced about

1.54 billion pounds of grapes for the fresh market, with an estimated

value of $327 million. Although it is not known how many of these farms

could be classified as small entities (annual gross receipts of $0.5

million or less, according to SBA size standards), it is likely that

most would.

If the volume of grapes to be imported were to reach 20 million

pounds, it would constitute about 2.9 percent of current total imports

to the United States, about 1.3 percent of current domestic production

and about 0.89 percent of the current total grape supply in the United

States (domestic and imports).

Assuming that a 0.89 percent increase in the supply of grapes would

lead to a decrease of about 0.88 percent in the domestic price of

grapes (using a price flexibility for California grapes of -0.981), we

estimate that this increase in supply would result in a price decrease

of about $3.73 per ton, or $0.0019 per pound, from an original price of

$425.62 per ton. As a result of the price decrease, there could be a

decrease in total revenue to U.S. grape producers of about $2.9

million, which is roughly 0.88 percent of the original total revenue of

$327 million. We anticipate, therefore, that allowing grapes to be cold

treated at Wilmington, NC, would not have a significant economic impact

on domestic producers.

Pears

In 1987, 10,092 farms in the United States, 88 of which were in

North Carolina, harvested apples. In 1992, domestic farms produced

about 890 million pounds of pears for the fresh market, with an

estimated value of $168 million. Although it is not known how many of

these farms could be classified as small entities (annual gross

receipts of $0.5 million or less, according to SBA size standards), it

is likely that most would.

If the volume of pears to be imported were to reach 20 million

pounds, it would constitute about 15.4 percent of current total imports

to the United States, about 2.2 percent of current domestic production

and about 2.0 percent of the current total pear supply in the United

States (domestic and imports).

Assuming that a 2.0 percent increase in the supply of pears would

lead to a decrease of about 1.2 percent in the domestic price of grapes

(using a price flexibility for California pears of -0.609), we estimate

that this increase in supply would result in a price decrease of about

$4.51 per ton, or $0.0023 per pound, from an original price of $377.61

per ton. As a result of the price decrease, there could be a decrease

in total revenue to U.S. pear producers of about $2.0 million, which is

roughly 1.19 percent of the original total revenue of $168 million. We

anticipate, therefore, that allowing pears to be cold treated at

Wilmington, NC, would not have a significant economic impact on

domestic producers.

Therefore, in light of the preceding analyses (which estimate

greatest possible, and thus highly unlikely, economic effects), as well

as our expectation that most imports of fruit to Wilmington, NC, for

cold treatment would occur during the off-season for domestic

production, we anticipate that this proposal would not have a

significant economic impact on domestic producers of apples, grapes,

and pears.

Furthermore, we anticipate that allowing cold treatment at the port

of Wilmington, NC, could have beneficial economic effects. Importers

who routinely transport fruit to the Southeastern United States could

benefit from this action due to lower transportation costs. Freight

companies and shipping companies in North Carolina, as well as the

local economy, might also benefit. Also, consumers are likely to gain

from the increased selection of products and any price decreases,

albeit small, that occur with increases in supply.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12778

This proposed rule would allow cold treatment of certain fruits to

be conducted at the port of Wilmington, NC. If this proposed rule is

adopted, State and local laws and regulations regarding the importation

of fruits under this rule would be preempted while the fruits are in

foreign commerce. Fresh fruits are generally imported for immediate

distribution and sale to the consuming public, and would 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. If this proposed rule is adopted, 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

This proposed rule contains no information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1980

(44 U.S.C. 3501 et seq.).

List of Subjects

7 CFR Part 300

Incorporation by reference, Plant diseases and pests, Quarantine.

7 CFR Part 319

Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by

reference, Nursery stock, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, title 7, chapter III, of the Code of Federal

Regulations would be amended as follows:

PART 300--INCORPORATION BY REFERENCE

1. The authority citation for part 300 would be revised to read as

follows:

Authority: 7 U.S.C. 150ee, 161, 162; 7 CFR 2.17, 2.51, and

371.2(c). 2. In Sec. 300.1, paragraph (a) would be revised to read

as follows:

Sec. 300.1 Materials incorporated by reference.

(a) The Plant Protection and Quarantine Treatment Manual, which was

revised and reprinted November 30, 1992, and includes all revisions

through ________, 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.

* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

3. The authority citation for part 319 would continue to read as

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450; 21 U.S.C.

136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).

4. In Sec. 319.56-2d, paragraph (a) would be revised to read as

follows:

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

certain imported fruits.

(a) Treatments authorized. Fresh fruits imported in accordance with

this subpart and required under this subpart to receive cold treatment

as a condition of entry must be cold treated in accordance with the

Plant Protection and Quarantine (PPQ) Treatment Manual, which is

incorporated by reference at Sec. 300.1 of this chapter. The cold

treatments listed in the PPQ Treatment Manual are authorized for any

fruit required to be cold treated under this subpart.

* * * * *

Sec. 319.56-2d [Amended]

5. In Sec. 319.56-2d, paragraph (b)(1), the second sentence would

be amended by removing the phrase ``port of New York or such other

northern ports as he may hereafter designate.'' and adding the phrase

``following ports: the port of Wilmington, NC; Atlantic ports north of,

and including, Baltimore, MD; ports on the Great Lakes and St. Lawrence

Seaway; Canadian border ports on the North Dakota border and east of

North Dakota; and, for air shipments, Washington DC, at Baltimore-

Washington International and Dulles International airports.'' in its

place.

6. In Sec. 319.56-2d, headings would be added at the beginning of

paragraphs (b)(5)(i) through (b)(5)(iii), and a new paragraph

(b)(5)(iv) would be added to read as follows:

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

certain imported fruits.

* * * * *

(b) * * *

(5) Cold treatment after arrival. (i) Delivery. * * *

(ii) Precooling and refrigeration. * * *

(iii) Customs. * * *

(iv) Special requirements for the port of Wilmington, NC. Shipments

of fruit arriving at the port of Wilmington, NC, for cold treatment, in

addition to meeting all of the requirements in paragraphs (b)(5)(i)

through (b)(5)(iii) of this section, must meet the following special

conditions:

(A) Bulk shipments (those shipments which are stowed and unloaded

by the case or bin) of fruit must arrive packaged in fly-proof

packaging that prevents the escape of adult, larval, or pupal fruit

flies.

(B) Bulk and containerized shipments of fruits and vegetables must

be cold-treated within the port of Wilmington, NC, that is, the area

over which the Bureau of Customs 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.

(C) Advance reservations for cold treatment space at the port of

Wilmington, NC, must be made prior to the departure of a shipment from

its port of origin.

* * * * *

Sec. 319.56-2u [Removed and Reserved]

7. Section 319.56-2u is removed and reserved.

Sec. 319.56-2v [Amended]

8. In Sec. 319.56-2v, paragraph (b), the third sentence would be

amended by removing the phrase ``North Atlantic ports north of and

including Baltimore, MD,'' and adding the phrase ``ports listed in

Sec. 319.56-2d(b)(1) of this subpart,'' in its place.

9. Section 319.56-2x would be amended as follows:

a. In paragraph (a), the table would be amended for the Israel

entry by adding a new commodity to read as set forth below.

b. In paragraph (b), the first sentence would be amended by adding

the phrase ``or the port of Wilmington, NC,'' immediately before the

word ``if''.

Sec. 319.56-2x Administrative instructions: conditions governing the

entry of certain fruits and vegetables for which treatment is required.

(a) * * *

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Country/locality Common name Botanical name Plant part(s)

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*****

Israel

*****

Pummelo.......... Citrus grandis.. Fruit

*****

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Done in Washington, DC, this 9th day of May 1994.

Lonnie J. King,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 94-11678 Filed 05-12-94; 8:45 am]

BILLING CODE 3410-34-P