Importation of Fruits and Vegetables

SUMMARY: We are proposing to revise the regulations for the importation

of fruits and vegetables to update provisions for inspections and other

activities at the port of first arrival. We propose to clarify the

procedures by which we give notice to an importer that cleaning,

disinfection, disposal, or some other action is required for a shipment

of fruits and vegetables. We also propose to clarify the responsibility

of the owner of imported fruits or vegetables for carrying out actions

ordered by an inspector in accordance with the regulations. This

proposed action would provide clearer standards for persons who must

comply with the regulations, and would aid our enforcement of the

regulations.

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

before September 11, 1995.

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

Docket No. 94-065-1, Regulatory Analysis and Development, PPD, APHIS,

Suite 3C03, 4700 River Road, Unit 118, Riverdale, MD 20737-1228. Please

state that your comments refer to Docket No. 94-065-1. 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: Ms. Jane Levy or Mr. Frank E. Cooper,

Senior Operations Officers, Port Operations, PPQ, APHIS, Suite 4A03,

4700 River Road, Unit 139, Riverdale, MD 20737-1236; (301) 734-8645.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 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 dissemination of injurious insects that

are new to or not widely distributed within and throughout the United

States.

Section 319.56-6 of the regulations addresses requirements for the

inspection and disinfection of imported fruits and vegetables at the

port of first arrival. This section provides, among other things, that

all imported fruits and vegetables, as a condition of entry, shall be

subject to inspection, disinfection, or both, at the port of first

arrival, as may be required by a U.S. Department of Agriculture (USDA)

inspector. The purpose of the inspection or disinfection is to detect

and eliminate plant pests. This section also provides that any shipment

of fruits and vegetables may be refused entry if the shipment is

infested with fruit flies or other dangerous plant pests and an

inspector determines that it cannot be cleaned by disinfection or

treatment, or if the shipment contains leaves, twigs, or other portions

of plants.

Section 319.56-6 also prohibits the movement of imported fruits and

vegetables from the port of first arrival until the inspector gives

notice to the collector of customs that the products have been

inspected and found to be free from infestation and from plants or

portions of plants used as packing or otherwise. This section also

states that the importer is responsible for all charges for storage,

cartage, and labor incident to inspection and disinfection, other than

the services of the inspector.

We are proposing to revise Sec. 319.56-6 to clarify the activities

that occur at the port of first arrival for imported fruits and

vegetables, and the roles and responsibilities of the USDA and the

importer with regard to these activities. The current language of this

section is unclear on some points, and we have experienced difficulties

enforcing some of the requirements because the current language does

not specify who is responsible for all of the activities and costs that

may be required to clear a shipment for entry into the United States.

We believe the changes we propose for this section would provide a

clearer, more comprehensive standard for importers who must comply with

our requirements, and would provide us with a better basis for

enforcing the requirements of the regulations.

Current Sec. 319.56-6(a) states that imported fruits or vegetables

``shall be subject, as a condition of entry, to such inspection or

disinfection, or both, at the port of first arrival, as shall be

required by the inspector * * *.'' This language does nothing to inform

the importer as to when or why an inspector might order disinfection,

or who is responsible for conducting it. To provide this information,

we propose to add the statement that ``If the inspector finds a plant

pest or evidence of a plant pest on or in any fruit or vegetable or its

container, or finds that the fruit or vegetable may have been

associated with other articles infested with plant pests, the owner or

agent of the owner of the fruit or vegetable shall clean or treat the

fruit or vegetable as required by an inspector * * *.''

We also propose to amend Sec. 319.56-6(a) to make it clear that

imported fruits and vegetables may be subject to reinspection,

cleaning, and treatment at the option of an inspector at any time and

place before all applicable requirements of this subpart have been

accomplished. The current language only allows inspection and

disinfection at the port of first arrival, and reinspection at

destination.

Also, the current regulations say nothing about where the inspector

will have the opportunity to inspect the imported fruits and

vegetables, or how the importer will cooperate in providing the

opportunity for inspection. Therefore, we propose to add a new

paragraph that requires the owner or agent of the owner to assemble

imported fruits and vegetables for inspection at the port of first

arrival, or at any other place prescribed by an inspector, at a place

and time and in a manner designated by an inspector.

The language in current Sec. 319.56-6(c), which describes when

imported fruits and vegetables may be removed from

[[Page 35872]]

the port of first arrival, is confusing and misleading. It reads ``No

crate, box, hamper, or other container of fruits or vegetables, or

fruits and vegetables in bulk, shall be removed from the port of first

arrival unless and until a written notice is given to the collector of

customs by the inspector of the United States Department of Agriculture

that the products have been inspected and found to be free from

infestation and from plants or portions of plants used as packing or

otherwise.''

We propose to revise this language to make it consistent with the

actual current operating procedures at ports. The proposed revision

would state that no person could move any imported fruit or vegetable

from the port until an inspector notifies the person that the fruit or

vegetable either has been released, or requires reinspection, cleaning,

or treatment at that port or at a place other than the port.

This revision would make it clear that the release for movement

requirements apply to all imported fruits and vegetables, regardless of

whether or how they are packaged. It would also clarify that our

inspector, rather than the collector of customs, gives the notice that

allows articles to move, to the person moving the articles. While we

coordinate our release of materials with customs officials at ports, we

do not need to impose a regulatory requirement to do so; the point of

the notice requirement in this section is to inform the owners of

articles when they can move them as far as USDA is concerned. This

change would also remove the requirement that the notice be written.

Inspectors at ports currently give notice in person, by telephone, in

writing, or by electronic means such as e-mail or entry into an

electronic database. We do not find it necessary to require the actual

notice to be in written form.

This revision would also clarify the standard we apply in deciding

to release a shipment for movement from the port of first arrival. The

current language is misleading, because not all shipments we release

have been ``inspected and found to be free from infestation.'' Some

shipments are released after they are found to be infested and were

successfully disinfected, and some shipments are released to be moved

to some other location for a required treatment. The current language

stating that the products must be free ``from plants or portions of

plants'' is also confusing unless the reader refers back to the

definition of ``plants or portions of plants'' in Sec. 319.56-1. It is

easier to understand that the inspector will release articles after

determining that they comply with the regulatory requirements, as we

propose in the new language.

The current language allows inspectors to order shipments to be

cleaned, disinfected, treated, or refused entry and disposed of, but it

does not specify who the inspector must notify when ordering such

actions. The current regulations also do not make any person clearly

responsible for completing the actions ordered by an inspector. We are

proposing to add a new paragraph requiring that an inspector order such

actions by filing an emergency action notification (PPQ Form 523) with

the owner of the fruit or vegetable or an agent of the owner. We also

propose to add language requiring that the person/company named in the

PPQ Form 523 must, within the time specified in the PPQ Form 523,

destroy the fruits, ship them to a point outside the United States,

move them to an authorized site, and/or apply treatments or other

safeguards to them as prescribed by an inspector to prevent the

introduction of plant pests into the United States. This approach is

consistent with current procedures at ports, and would clarify the

responsibilities of involved parties and aid enforcement of the

regulations.

Finally, current Sec. 319.56-6(d) addresses the responsibility of

the importer for charges ``incident to inspection and disinfection,''

but provides little detail on what activities might result in charges.

We propose to add a new paragraph to state that the Animal and Plant

Health Inspection Service (APHIS) will be responsible only for the

costs of providing the services of an inspector during regularly

assigned hours of duty and at the usual places of duty. The owner of

imported fruits or vegetables is responsible for all additional costs

of inspection, treatment, storage, movement, or destruction ordered by

an inspector under the regulations, including any labor, chemicals,

packing materials, or other supplies required. APHIS will not be

responsible for any costs or charges, other than those identified in

this section.

Correction of Citrus Canker Status of Mexico

In a final rule published in the Federal Register and effective on

July 23, 1991 (Docket No. 91-022, 56 FR 33703-33704), we removed our

``Citrus Canker--Mexico'' regulations (7 CFR 319.27 through 319.27-11).

This action resulted from our determination that the regulations were

no longer needed because citrus canker no longer existed in Mexico.

Removing the ``Citrus Canker--Mexico'' regulations removed restrictions

on the importation from Mexico of citrus fruit and peel. However, we

inadvertently neglected to remove a provision in 7 CFR 319.37-6(e) that

restricted importation of citrus seed from Mexico due to citrus canker.

To correct this oversight, we now propose to remove Mexico from the

list of countries in 7 CFR 319.37-6(e).

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.

If adopted, this proposal would clarify procedures for the

inspection and release of imported fruits and vegetables at the port of

first arrival in the United States. The proposed revision of the

regulations would update the regulatory language to conform to

procedures currently in use at ports. These changes would provide a

clearer standard for importers of fruits and vegetables who must comply

with the regulations, and would enhance enforcement of the regulations.

The proposed changes would not add any significant new costs for

importers of fruits and vegetables or other persons. Importers are

already responsible for all costs of treatment, movement, storage, or

destruction ordered by an inspector at a port.

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 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 12778

This proposed rule would clarify the requirements at the port of

first arrival for fruits and vegetables imported into the United

States. If this proposed rule is adopted, 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. Fresh fruits and vegetables 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

[[Page 35873]]

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 in 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, 7 CFR part 319 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.17, 2.51, and 371.2(c).

Sec. 319.37-6 [Amended]

2. In Sec. 319.37-6, paragraph (e) would be amended by removing the

word ``Mexico,''.

3. Section 319.56-6 would be revised to read as follows:

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

arrival.

(a) Inspection and treatment. All imported fruits or vegetables

shall be inspected, and shall be subject to such disinfection at the

port of first arrival as may be required by an inspector, and shall be

subject to reinspection at other locations at the option of an

inspector. If an inspector finds a plant pest or evidence of a plant

pest on or in any fruit or vegetable or its container, or finds that

the fruit or vegetable may have been associated with other articles

infested with plant pests, the owner or agent of the owner of the fruit

or vegetable shall clean or treat the fruit or vegetable and its

container as required by an inspector, and the fruit or vegetable shall

also be subject to reinspection, cleaning, and treatment at the option

of an inspector at any time and place before all applicable

requirements of this subpart have been accomplished.

(b) Assembly for inspection. The owner or agent of the owner shall

assemble imported fruits and vegetables for inspection at the port of

first arrival, or at any other place prescribed by an inspector, at a

place and time and in a manner designated by an inspector.

(c) Refusal of entry. If an inspector finds that an imported fruit

or vegetable is prohibited or is so infested with a plant pest that, in

the judgment of the inspector, it cannot be cleaned or treated, or

contains soil or other prohibited contaminants, the entire lot may be

refused entry into the United States.

(d) Release for movement. No person shall move from the port of

first arrival any imported fruit or vegetable unless and until an

inspector notifies the person (in person, in writing, by telephone, or

through electronic means) that the fruit or vegetable:

(1) Has been released; or

(2) Requires reinspection, cleaning, or treatment of the fruit or

vegetable at that port or at a place other than the port of first

arrival, or is prohibited and must be exported from the United States.

(e) Notice to owner of actions ordered by inspector. If an

inspector orders any disinfection, cleaning, treatment, reexportation,

or other action with regard to imported fruits or vegetables, the

inspector shall file an emergency action notification (PPQ Form 523)

with the owner of the fruits or vegetables or an agent of the owner.

The owner must, within the time specified in the PPQ Form 523, destroy

the fruits and vegetables, ship them to a point outside the United

States, move them to an authorized site, and/or apply treatments or

other safeguards to the fruits and vegetables as prescribed by an

inspector to prevent the introduction of plant pests into the United

States.

(f) Costs and charges. The Animal and Plant Health Inspection

Service (APHIS), U.S. Department of Agriculture will be responsible

only for the costs of providing the services of an inspector during

regularly assigned hours of duty and at the usual places of duty.1

The owner of imported fruits or vegetables is responsible for all

additional costs of inspection, treatment, movement, storage, or

destruction ordered by an inspector under this subpart, including any

labor, chemicals, packing materials, or other supplies required. APHIS

will not be responsible for any costs or charges, other than those

identified in this section.

\1\ Provisions relating to costs for other services of an

inspector are contained in 7 CFR part 354.

Done in Washington, DC, this 30th day of June 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-17019 Filed 7-11-95; 8:45 am]

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