Removal of Mexican Border Regulations

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 319, 320, 330, and 352

[Docket No. 97-037-2]

Removal of Mexican Border Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are removing the regulations at 7 CFR part 320, ``Mexican

Border Regulations,'' which serve to prevent the introduction into the

United States of plant pests from Mexico by regulating the importation

of vehicles, soil, and other materials from Mexico. The regulations at

7 CFR part 330, ``Federal Plant Pest Regulations; General; Plant Pests;

Soil, Stone, and Quarry Products; Garbage,'' serve to prevent the

introduction into the United States of plant pests from all foreign

countries, including Mexico, by regulating the importation of plant

pests themselves, as well as vehicles, soil, and other materials. The

provisions in the ``Mexican Border Regulations'' to prevent the entry

of plant pests from Mexico are covered in part 330. Therefore, the

regulations in part 320 are unnecessary and will be removed. This

action meets the President's regulatory reform goal of removing

redundant Federal regulations.

EFFECTIVE DATE: January 9, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. James A. Petit de Mange, Staff

Officer, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River

Road Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

The regulations at 7 CFR part 320, ``Mexican Border Regulations,''

serve to prevent the entry into the United States of plant pests from

Mexico by regulating the importation of vehicles, soil, and other

materials from Mexico. These regulations were established to carry out

the Mexican Border Act (7 U.S.C. 149), which authorizes the Secretary

of Agriculture to inspect, clean, and, when necessary, disinfect

railway cars, other vehicles, and materials entering the United States

from Mexico.

The regulations at 7 CFR part 330, ``Federal Plant Pest

Regulations; General; Plant Pests; Soil, Stone, and Quarry Products;

Garbage,'' serve to prevent the dissemination of plant pests into or

within the United States by regulating the movement of plant pests,

means of conveyance, earth, stone and quarry products, garbage, and

certain other products and articles into or through the United States.

The regulations at part 330 are authorized by the Plant Quarantine Act

(7 U.S.C. 151 et seq.) and the Federal Plant Pest Act (7 U.S.C. 150aa

et seq.).

On August 14, 1997, we published in the Federal Register (62 FR

43487-43489, Docket No. 97-037-1) a proposal to remove the Mexican

Border Regulations and all references to these regulations in title 7

and to correct some erroneous references to a section in 7 CFR part 319

that no longer exists. We proposed this action in accordance with the

President's Regulatory Reform Initiative. We do not believe that the

Mexican Border Regulations are necessary for the U.S. Department of

Agriculture (USDA) to prevent the introduction of plant pests from

Mexico into the United States via imported vehicles, soil, and other

materials. We believe that the Mexican Border Regulations are redundant

because of the existence of part 330, which regulates the importation

of plant pests themselves, as well as vehicles, soil, and other

materials, from any foreign country, including Mexico.

We solicited comments concerning our proposal for 60 days ending

October 14, 1997. We received two comments by that date. They were from

organizations representing the interests of California avocado

producers. The comments are discussed below.

The commenters contend that the Mexican Border Regulations are not

unnecessary and question USDA's authority to remove these regulations.

The commenters state that these regulations are mandated by law. One

commenter stated that it is critical for our agency to adhere to the

Congressional Review of Agency Rulemaking Act of 1996, which requires

Federal agencies to submit copies of final rules to Congress prior to

their effective dates.

According to the Mexican Border Act, the Secretary of Agriculture

is ``authorized and directed to promulgate such rules and regulations

as he may deem necessary to regulate the entry into the United States

of railway cars and other vehicles and freight, express, baggage, and

other materials which may carry'' plant pests and diseases (emphasis

added). The Secretary is not legally bound by the law to promulgate any

regulations, much less a specific part of the Code of Federal

Regulations for the exclusive purpose of administering the Mexican

Border Act. However, we believe that the regulations in 7 CFR part 330

carry out the Mexican Border Act. To make this point clear, we are

adding through this final rule the citation for the Mexican Border Act

(7 U.S.C. 149) to the list of authority citations in part 330. As with

all final rules prepared by our agency, we will submit a copy of this

final rule to Congress prior to the rule's effective date.

One commenter requested that USDA reaffirm in the final rule ``that

Part 330 stands as a comprehensive regulatory program directed at

preventing the introduction and/or dissemination of plant pests and

diseases into the United States.'' The commenter further requested that

USDA reaffirm that the regulations in part 330 cover all the products

(regulated vehicles, articles, and materials) currently covered by part

320.

The regulations in part 330 do not constitute a program per se. The

purpose of the regulations in part 330, as stated in Sec. 330.101, is

``to prevent the dissemination of plant pests into the United States,

or interstate, by regulating the movement of plant pests into or

through the United States, or interstate, and the movement of means of

conveyance, earth, stone and quarry products, garbage, and certain

other

[[Page 65008]]

products and articles. * * * '' In carrying out our mission of

protecting U.S. agriculture, our agency administers these regulations

through several programs. We reiterate that all of the items covered in

part 320 are also covered in part 330. According to Sec. 330.105, `` *

* * all plant pests; means of conveyance and their stores; baggage;

mail; plants; plant products; soil; stone and quarry products under

Sec. 330.300; garbage; and any other product or article of any

character whatsoever which an inspector considers may be infested or

infected by or contain a plant pest, arriving in the United States from

any place outside thereof for entry into or movement through the United

States shall be subject to inspection * * * '' (emphasis added).

The commenters questioned the timing of our proposal. They

expressed particular concern because, as of November 1, Mexican

avocados have been allowed to be imported into 19 northeastern States

of the United States. In addition, one commenter questioned the timing

of this rulemaking action because of recent incidents of food safety

problems related to imported produce and the recent Presidential

initiative to increase food safety inspections of fruit and vegetables

overseas. The commenter also stated that the timing was inappropriate

in light of the current attempt by the Administration to obtain ``fast-

track'' authority for the President to negotiate new trade agreements.

Our agency has no authority in regard to food that poses threats to

human health. We inspect imported agricultural products and other

articles to ensure that they do not introduce foreign agricultural

pests and diseases that could harm U.S. crops. Ensuring food safety is

the responsibility of other Federal agencies. However, this rulemaking

will have no impact on either food safety or crop protection, because

it does not change any inspection procedures or authorities. In

addition, the Administration's attempt to gain fast-track authority in

regard to trade is a political issue outside our jurisdiction.

Consequently, this rulemaking action is entirely unrelated to and has

no bearing on this issue. In regard to the importation of Mexican

avocados, the timing of this action is purely coincidental. However,

this action will in no way change our ability to take regulatory

action, should the need arise, in regard to imported Mexican avocados.

We have ample authority under part 330 and other parts of title 7 to

take any necessary action in the unlikely event imported Mexican

avocados are found to present a threat to U.S. agriculture.

The commenters were concerned that elimination of the Mexican

Border Regulations could somehow weaken U.S. quarantine security and,

therefore, present a risk of avocado pest introduction. One commenter

was concerned that the purpose of the Mexican Border Regulations is

``to prevent the introduction of insect pests and diseases,'' while the

purpose of the Federal plant pest regulations is ``to prevent the

dissemination of plant pests into the United States.'' The commenter

was particularly concerned that ``dissemination in this context is

something less than introduction.'' The commenter believes that the

standard for prevention of plant pests is higher in the Mexican Border

Regulations than in the Federal plant pest regulations.

Elimination of the Mexican Border Regulations is merely an

administrative action to remove redundant Federal regulations. This

action will have no effect on any regulatory activities performed by

our agency to protect U.S. agriculture. We take action on imported

products based on the phytosanitary risk they present. Moreover, part

320 provides neither more nor less authority than part 330 in regard to

regulating articles imported from Mexico. Our treatment of regulated

articles from Mexico will be the same under part 330 as it has been

under part 320.

In regard to the difference between the terms ``introduction'' and

``dissemination'' as they are used, respectively, in parts 320 and 330,

we believe that the intent of both usages is the same: The prevention

of threats to U.S. plant health from exotic pests. However, we believe

the commenter's interpretation of the level of quarantine security

implied by the two words is actually reversed. Our agency considers

preventing the dissemination of a pest into the United States to mean

preventing any entry of the pest. Whereas the NAPPO Compendium of

Phytosanitary Terms (a publication that defines terminology used by the

North American Plant Protection Organization) defines introduction as

``entry and establishment of a pest'' and ``entry of a pest, resulting

in establishment.''

One commenter stated that ensuring quarantine security should be

USDA's overriding goal and that this goal should not be ``sacrificed''

to facilitate trade. The commenter further stated that the Mexican

Border Regulations require ``as a condition of entry into the United

States from Mexico all articles and materials * * * shall be subject to

examination by an inspector,'' while the Federal plant pest regulations

require that USDA ``employ procedures * * * which will impose a minimum

of impediment to foreign commerce'' (emphasis added by commenter).

In fulfilling our agency's mission of protecting American

agriculture, ensuring quarantine security is our primary objective.

However, providing quarantine security by the least restrictive means

has always been a philosophical tenet of our agency and is consistent

with the sanitary and phytosanitary principles of the World Trade

Organization. While few importations of agricultural products present

absolutely no risk of pest or disease introduction, we would never

allow the importation of any foreign product or article under

circumstances that we thought would compromise phytosanitary security.

In regard to the differing language used in parts 320 and 330

pertaining to inspection of imported articles, again, we believe the

language in the two parts means the same thing. Moreover, the commenter

did not cite relevant language from part 330. The complete sentence

quoted by the commenter reads, ``The Deputy Administrator shall employ

procedures to carry out this purpose which will impose a minimum of

impediment to foreign commerce and travel whenever practicable,

consistent with proper precaution against plant pest dissemination''

(emphasis added). We believe this language indicates that quarantine

security is the ultimate priority and that facilitating trade and

travel are secondary goals.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions of the proposal as

a final rule with the change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule

has been determined to be not significant for the purposes of Executive

Order 12866 and, therefore, has not been reviewed by the Office of

Management and Budget.

The purpose of this rule is to remove redundant regulations from

title 7 of the CFR. No segment of U.S. society will be affected by this

regulatory action.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action will

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

entities.

[[Page 65009]]

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 rule has been reviewed under Executive Order 12988, Civil

Justice Reform. This rule: (1) Preempts all State and local laws and

regulations that are inconsistent with this rule; (2) has no

retroactive effect; and

(3) does not require administrative proceedings before parties may

file suit in court challenging this rule.

Paperwork Reduction Act

This rule contains no information collection or recordkeeping

requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

Regulatory Reform

This action is part of the President's Regulatory Reform

Initiative, which, among other things, directs agencies to remove

obsolete and unnecessary regulations and to find less burdensome ways

to achieve regulatory goals.

List of Subjects

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.

7 CFR Part 320

Imports, International boundaries, Mexico, Plant diseases and

pests, Quarantine, Transportation.

7 CFR Part 330

Customs duties and inspection, Imports, Plant diseases and pests,

Quarantine, Reporting and recordkeeping requirements, Transportation.

7 CFR Part 352

Customs duties and inspection, Imports, Plant diseases and pests,

Quarantine, Reporting and recordkeeping requirements, Transportation.

Accordingly, 7 CFR, chapter III, is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 continues 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 2.22, 2.80, and 371.2(c).

Sec. 319.8-27 [Removed]

2. Section 319.8-27, ``Applicability of Mexican Border

Regulations,'' is removed.

Sec. 319.69a [Amended]

3. In Sec. 319.69a, paragraph (c), the reference to

``Sec. 319.37'16a'' is removed and a reference to ``Sec. 319.37-9'' is

added in its place.

PART 320--[REMOVED]

4. Under the authority of 7 U.S.C. 149 and 150ee and 21 U.S.C. 136

and 136a, 7 CFR, chapter III, is amended by removing ``PART 320--

MEXICAN BORDER REGULATIONS''.

PART 330--FEDERAL PLANT PEST REGULATIONS; GENERAL; PLANT PESTS;

SOIL, STONE, AND QUARRY PRODUCTS; GARBAGE

5. The authority citation for part 330 is revised to read as

follows:

Authority: 7 U.S.C. 147a, 149, 150bb, 150dd-150ff, 161, 162,

164a, 450, 2260; 19 U.S.C. 1306; 21 U.S.C. 111, 114a; 136 and 136a;

31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and

371.2(c).

Sec. 330.105 [Amended]

6. In Sec. 330.105, paragraph (a), third sentence, the reference to

``320,'' is removed.

Sec. 330.300 [Amended]

7. Section Sec. 330.300 is amended as follows:

a. In the introductory text, by removing the reference to ``,

Sec. 319.37-16a,'' in the first sentence, and by removing the entire

last sentence.

b. In paragraph (a), by removing the reference to '', Sec. 319.37-

16a,'' and the words '', or part 320''.

PART 352--PLANT QUARANTINE SAFEGUARD REGULATIONS

8. The authority citation for part 352 continues to read as

follows:

Authority: 7 U.S.C. 149, 150bb, 150dd, 150ee, 150ff, 154, 159,

160, 162, and 2260; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR

2.22, 2.80, and 371.2(c).

Sec. 352.1 [Amended]

9. In Sec. 352.1, paragraphs (b)(14), (b)(15), (b)(16), and

(b)(24), the reference to ``320,'' is removed.

Sec. 352.2 [Amended]

10. In Sec. 352.2, in paragraph (a), the first sentence, and in

paragraph (b), the reference to ``320,'' is removed.

Sec. 352.5 [Amended]

11. In Sec. 352.5, paragraph (d), the reference to ``320,'' is

removed both times it appears.

Sec. 352.10 [Amended]

12. In Sec. 352.10, the reference to ``320,'' is removed in the

following places.

a. Paragraph (a), third sentence.

b. Paragraph (b)(1), sixth sentence.

c. Paragraph (b)(2), second sentence.

Sec. 352.13 [Amended]

13. In Sec. 352.13, the reference to ``320,'' is removed.

Done in Washington, DC, this 4th day of December 1997.

Craig A. Reed,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 97-32245 Filed 12-9-97; 8:45 am]

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