# Fruit From Hawaii

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-15403

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 10, 1998
- **Citation:** 63 FR 31675

## Text

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 97-005-1]

Fruit From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to allow abiu, atemoya, longan, rambutan, and
sapodilla to be moved interstate from Hawaii if the fruit undergoes
irradiation treatment at an approved facility. Treatment could be
conducted either in Hawaii or in non-fruit fly supporting areas of the
mainland United States. The fruit would also have to meet certain
additional requirements, including packaging requirements. We are also
proposing to allow durian to be moved interstate from Hawaii if the
durian is inspected and found free of certain plant pests. In addition,
we are proposing to allow certain varieties of green bananas to move
interstate from Hawaii under certain conditions intended to ensure the
bananas' freedom from plant pests, including fruit flies. These actions
would relieve restrictions on the movement of these fruits from Hawaii
while continuing to provide protection against the spread of injurious
plant pests from Hawaii to other parts of the United States.

DATES: Consideration will be given only to comments received on or
before August 10, 1998.

ADDRESSES: Please send an original and three copies of your comments to
Docket No. 97-005-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 97-005-1. 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: Mr. Peter M. Grosser, Senior Staff
Officer, Phytosanitary Issues Management Team (PIMT), PPQ, APHIS, 4700
River Road Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

The Hawaiian Fruits and Vegetables regulations, contained in 7 CFR
318.13 through 318.13-17 (referred to below as the regulations),
govern, among other things, the interstate movement of fruits and
vegetables from Hawaii. Regulation is necessary to prevent the spread
of dangerous plant diseases and pests that occur in Hawaii, including
the Mediterranean fruit fly (Ceratitis capitata), the melon fly
(Bactrocera cucurbitae), the Oriental fruit fly (Bactrocera dorsalis),
and the Malaysian fruit fly (Bactrocera latifrons). These types of
fruit flies are collectively referred to in this document as ``fruit
flies.''

Abiu, Atemoya, Longan, Rambutan, and Sapodilla

The regulations at Sec. 318.13-4f allow fruits and vegetables
listed in Sec. 318.13-4f(a) to be moved interstate from Hawaii if,
among other things, the fruits and vegetables undergo irradiation
treatment in accordance with that section. Currently, Sec. 318.13-4f(a)
lists carambola, litchi, and papaya. We are proposing to allow abiu
(Pouteria caimito), atemoya (Annona squamosa x A. cherimola), longan
(Dimocarpus longan), rambutan (Nephelium lappaceum), and sapodilla
(Manilkara sapota) to be moved interstate from Hawaii in accordance
with these same requirements for irradiation. These fruits would be
added to the list in Sec. 318.13-4f(a).
Section 318.13-4f provides that:
1. Irradiation treatment must be carried out only in Hawaii or in
non-fruit-fly supporting areas of the mainland United States (i.e.,
States other than Alabama, Arizona, California, Florida, Georgia,
Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina,
South Carolina, Tennessee, Texas, or Virginia);
2. The irradiation treatment facility and treatment protocol must
be approved by the Animal and Plant Health Inspection Service (APHIS);
3. In order to be approved, a facility must be capable of
administering a minimum absorbed ionizing radiation dose of 250 Gray
(25 krad), be constructed so as to provide physically separate
locations for treated and untreated fruits and vegetables, complete a
compliance agreement with APHIS, and be certified by Plant Protection
and Quarantine, APHIS, for initial use and annually for subsequent use;
4. Irradiation treatment must be monitored by an inspector, who may
be either an APHIS employee or a State plant regulatory official;
5. If treated in Hawaii, the fruits and vegetables must be packaged
in pest-proof cartons. Then, the pallet-load of pest-proof cartons must
be wrapped, before leaving the irradiation facility, in one of the
following ways: (1) With polyethylene sheet wrap; (2) with net
wrapping; or (3) with strapping so that each carton on an outside row
of the pallet load is constrained by a metal or plastic strap. In
addition, pallet-loads must be labeled before leaving the irradiation
facility with treatment lot numbers, packing and treatment facility
identification and location, and dates of packing and treatment;
6. If moving to the mainland for treatment, the untreated fruits
and vegetables may be packed in either pest-proof or non-pest-proof
cartons, but the cartons must be shipped in shipping containers sealed
prior to interstate movement with seals that will visually indicate if
the shipping containers have been opened;
7. The fruits and vegetables must receive a minimum absorbed
ionizing irradiation dose of 250 Gray (25 krad);
8. Dosimetry systems in the irradiation facility must map, control,
and record the absorbed dose;
9. The absorbed dose must be measured by a dosimeter that can
accurately measure an absorbed dose of 250 Gray (25 krad);
10. The number and placement of dosimeters must be in accordance
with American Society for Testing and Materials standards;
11. The irradiation facility must keep records or invoices for each
treatment

[[Page 31676]]

lot for a period that exceeds the shelf life of the irradiated food
product by 1 year and must make those records available to an inspector
for inspection; and
12. An inspector will issue a certificate for the interstate
movement of fruits and vegetables treated and handled in Hawaii in
accordance with the regulations at Sec. 318.13-4f. An inspector will
issue a limited permit for the interstate movement of untreated fruits
and vegetables from Hawaii for irradiation treatment on the mainland
United States.
Section 318.37-4f(d) sets forth procedures for applying for
approval and inspection of a treatment facility, and procedures for
denial and withdrawal of approval.
Section 318.13-4f(e) further provides that the U.S. Department of
Agriculture and its inspectors are not responsible for any loss or
damage resulting from any treatment prescribed or supervised.
In addition, we are proposing to prohibit the movement of treated
and untreated longan from Hawaii into Florida. We have determined that
irradiation treatment may not affect one of the pests that may be
carried by longan. Like litchi, longan is a host of the litchi rust
mite (Eriphyes litchi), and this pest cannot be easily detected by an
inspector. Therefore, the entry of longan from Hawaii into Florida,
where most mainland litchi is grown, would be prohibited as a
precaution against the possible introduction of litchi rust mite.
Accordingly, Sec. 318.13-4f(b)(4)(iii) would be amended to state that
cartons in which longan from Hawaii are packed must be stamped ``Not
for importation into or distribution in FL.''
We believe that the proposed requirements described above would be
sufficient to allow the safe interstate movement of abiu, atemoya,
longan, rambutan, and sapodilla from Hawaii to the mainland United
States.
Durian
We are also proposing to allow durian (Dirio zibethinus) to be
moved interstate from Hawaii if it is inspected and found free of plant
pests. Durian is not a fruit fly host. The pests associated with durian
produced in Hawaii 1 are readily detectable by inspection.
Section 318.13-4 provides that fruits and vegetables listed in
Sec. 318.13-2(b) of the regulations may be certified for interstate
movement from Hawaii when they have been inspected by an inspector and
found apparently free from infestation and infection. We would add
durian to the list of fruits and vegetables in Sec. 318.13-2(b).
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\1\ Information on the pests that may be associated with the
interstate movement of durian, green bananas, or any other fruit
listed in this document, may be found in the pest risk analyses
prepared for this action. Those pest risk analyses may be obtained
by writing to the person listed under FOR FURTHER INFORMATION
CONTACT or by calling the Plant Protection and Quarantine (PPQ) fax
vault at 301-734-3560.
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Green Bananas
We are proposing to add a new Sec. 318.13-4i to the regulations to
provide for the interstate movement of green bananas (Musa spp.) of the
cultivars ``Williams,'' ``Valery,'' and dwarf ``Brazilian'' from
Hawaii. Ripe, yellow bananas are a host of fruit flies, and may not be
moved interstate from Hawaii. However, we have determined that green
bananas of the cultivars ``Williams,'' ``Valery,'' and dwarf
``Brazilian'' from Hawaii are only fruit fly hosts if they have any of
the following defects: Prematurely ripe fingers, fused fingers, or
exposed flesh (not including fresh cuts made during the packing
process). Any of the defects listed may attract fruit flies and provide
a pathway for infestation. Therefore, we are proposing to allow green
bananas of the varieties named above to be moved interstate from Hawaii
under the following conditions, which would ensure that the bananas are
free from fruit flies and other pests:
1. The bananas must be picked while green and packed for shipment
within 24 hours after harvest. If the green bananas will be stored
overnight during that 24-hour period, they must be stored in a facility
that prevents access by fruit flies;
2. No bananas from bunches containing prematurely ripe fingers
(i.e., individual yellow bananas in a cluster of otherwise green
bananas) may be harvested or packed for shipment;
3. The bananas must be inspected by an inspector and found free of
plant pests as well as any of the following defects: Prematurely ripe
fingers, fused fingers, or exposed flesh (not including fresh cuts made
during the packing process); and
4. The bananas must be packaged in a pest-proof shipping container
or carton.
An inspector would issue a certificate, in accordance with
Secs. 318.13-3 and 318.13-4, for the interstate movement of green
bananas that meet these conditions.
We believe that the conditions described above for the interstate
movement of green bananas from Hawaii would provide protection against
the spread of injurious plant pests that may be associated with the
green bananas to other parts of the United States.

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 the purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
We are proposing to allow abiu, atemoya, longan, rambutan, and
sapodilla to be moved interstate from Hawaii if the fruit undergoes
irradiation treatment at an approved facility. Treatment could be
conducted either in Hawaii or in non-fruit fly supporting areas of the
mainland United States. The fruit would also have to meet certain
additional requirements, including packaging requirements. We are also
proposing to allow durian to be moved interstate from Hawaii if the
durian is inspected and found free of certain plant pests. In addition,
we are proposing to allow certain varieties of green bananas to move
interstate from Hawaii under certain conditions intended to ensure the
bananas' freedom from plant pests, including fruit flies.
The mainland United States has very limited, if any, quantities of
abiu, atemoya, durian, longan, rambutan, and sapodilla for sale to
consumers. Three of these specialty fruits--abiu, durian, and
rambutan--are not grown commercially on the mainland United States;
atemoya, longan, and sapodilla are grown commercially on the mainland
United States but only in relatively small quantities. All mainland
production of atemoya, longan, and sapodilla occurs in the State of
Florida. It is estimated that Florida's annual production of atemoya
amounts to approximately 80,000 pounds; of longan, approximately 2
million pounds; of sapodilla, approximately 350,000 pounds.
Unlike the other fruits listed in this document, bananas are
generally not considered to be specialty fruits. Also unlike the other
fruits, the mainland United States has abundant quantities of bananas,
including green bananas, for sale to consumers. However, virtually all
bananas sold in the United States are imported. Less than 1 percent of
the U.S. supply of bananas is produced domestically, and only a
minuscule portion of domestic production occurs on the mainland United
States, in Florida and California. In 1992, Florida produced 158,662
pounds of bananas. Production data for California is not available, but
production in California is estimated to be much less than in

[[Page 31677]]

Florida, given that in 1992 there were only 2 banana-producing farms in
California and 67 in Florida. Hawaii accounted for the remainder of
domestic banana production in 1992, with a total of 12,570,831 pounds.
Based on data for 1992, therefore, Hawaii accounts for nearly all of
the banana production in the United States.
It is estimated that there are less than 100 farms growing tropical
specialty fruits in Florida, and virtually all of these farms are
located in the southern part of the State. Information is not available
on the gross receipts for each of these farms, but since the farms are
generally less than 5 acres in size, it is reasonable to assume that
most are small entities under Small Business Administration (SBA)
standards. We do not expect the interstate movement of abiu, atemoya,
durian, longan, rambutan, and sapodilla to affect these fruit producers
for several reasons. First, as discussed earlier, three of the six
specialty fruits are not grown commercially on the mainland United
States. Second, the demand for the remaining three specialty fruits
that are produced in Florida is strong, particularly among Asian
Americans on the mainland United States. Florida currently has no
difficulty selling all of the atemoya, longan, and sapodilla that it
produces. Third, Hawaiian fruit would likely be marketed primarily in
western States on the mainland while Florida's fruits are sold
primarily in eastern States. Therefore, Hawaii's specialty fruits would
likely be in little direct competition with Florida's specialty fruits.
As discussed above, in 1992, 67 farms in Florida and 2 farms in
California produced bananas. Like the specialty fruit growers, most
banana-producing farms in Florida and California are assumed to be
small entities under SBA standards. However, any interstate movement of
green bananas from Hawaii should have little or no impact on banana
producers on the mainland United States. This is due to the relatively
small volume of bananas that may be moved interstate from Hawaii. Even
in the unlikely event that Hawaii moves all of its production
interstate, Hawaii's bananas would still account for less than 1
percent of the mainland U.S. supply.
We expect that fruit growers in Hawaii would benefit from the
interstate movement of abiu, atemoya, durian, green bananas, longan,
rambutan, and sapodilla from Hawaii because these growers would have
new outlets for their products. In 1995, the State of Hawaii produced
1,250,800 pounds of specialty tropical fruit (of all varieties) with a
value of $987,100. Three varieties of fruit--carambola, litchi, and
specialty pineapple--accounted for 74 percent of Hawaii's 1995
production. The remaining 26 percent, or approximately 325,000 pounds
of fruit, consisted of all other varieties of fruit grown in Hawaii,
including the six specialty fruits named in this document. Also, in
1992, Hawaii produced 12,570,831 pounds of bananas, with a value of
$5.2 million.
In 1995, 115 farms in the State of Hawaii grew at least one variety
of specialty tropical fruit. However, information on which of those
farms grew one or more of the six specialty fruits named in this
document is not available. Information is also not available on the
gross receipts for each of the 115 farms. In all likelihood, most of
the 115 farms are small entities because data for all 2,019 Hawaiian
farms whose revenues are derived primarily from the sales of fruit and/
or tree nuts show that 99 percent are small entities under SBA
standards.
The production of tropical specialty fruit is growing rapidly in
Hawaii. The State's 1995 production level represents an increase of
approximately 126 percent, or 698,100 pounds, over the 1994 level of
552,700 pounds. Carambola and specialty pineapple accounted for more
than 80 percent of the increase. The increase in production of tropical
specialty fruit is expected to continue, as a response to the decline
in the sugar industry and to the recent availability of prime
agricultural lands in the State of Hawaii. In 1995, Hawaiian growers
devoted 415 acres to tropical specialty fruits, 6 percent more acreage
than in 1994. It is estimated that by the year 2000, Hawaii will be
producing 2.6 million pounds of tropical specialty fruits annually,
more than double the 1995 level. If Hawaiian growers move 200,000
pounds of each of the six specialty fruits named in this document
interstate annually, using the 1995 average per pound value of all
tropical specialty fruits produced in Hawaii (on all 115 farms) of
$.79, the collective annual sales of the fruit would generate $948,000.
This amounts to $8,243 per farm when divided equally among the 115
farms growing specialty tropical fruit.
In 1992, bananas were produced on 700 farms in Hawaii, and a total
of 1,506 acres were devoted to banana production on those farms.
Although data for individual farms in Hawaii that produce bananas is
not available, most are probably small entities by SBA standards
because, as mentioned earlier, data for all 2,019 Hawaiian farms whose
revenues are derived primarily from the sales of fruit and/or tree nuts
show that 99 percent are small entities under SBA standards. However,
if the proposal is adopted, it would not have a significant impact on
Hawaiian banana producers. Even if those producers were to move
interstate the equivalent of half of the 1992 banana production (6.3
million pounds), the combined revenues from such sales would amount to
$2.6 million dollars, an average of only $3,681 per farm.
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 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.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. 97-005-1.
Please send a copy of your comments to: (1) Docket No. 97-005-1,
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,
OIRM, USDA, room 404-W, 14th Street and Independence Avenue SW.,
Washington, DC 20250. Comments on the information collection or
recordkeeping requirements included in this proposed rule are due 60
days from the proposed rule's date of publication in the Federal
Register. A comment to OMB is best assured of having its full

[[Page 31678]]

effect if OMB receives it within 30 days of publication of this
proposed rule.
This proposed rule would allow abiu, atemoya, longan, rambutan, and
sapodilla to move interstate from Hawaii to the mainland United States
if, among other things, the fruit undergoes irradiation treatment in
Hawaii or in a non-fruit fly supporting area of the mainland United
States. In addition, we are proposing to allow durian and green bananas
to move interstate from Hawaii under certain conditions. In order for
these fruits to move interstate to the mainland United States, we would
have to issue certificates and limited permits, and we would have to
mark and seal shipping containers. These information collection
activities would help ensure that only those fruits that have been
handled in compliance with the regulations move interstate to the
mainland United States.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. We need this outside input to help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average .2550 hours per response.
Respondents: Importers, exporters, shippers, and irradiation
facility operators.
Estimated annual number of respondents: 10.
Estimated annual number of responses per respondent: 255.2.
Estimated annual number of responses: 2,552.
Estimated total annual burden on respondents: 651 hours.
Copies of this information collection can be obtained from:
Clearance Officer, OIRM, USDA, Room 404-W, 14th Street and Independence
Ave., SW, Washington, DC 20250.

List of Subjects in 7 CFR Part 318

Cotton, Cottonseeds, Fruits, Guam, Hawaii, Incorporation by
reference, Plant diseases and pests, Puerto Rico, Quarantine,
Transportation, Vegetables, Virgin Islands.
Accordingly, 7 CFR part 318 would be amended as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

1. The authority citation for part 318 would continue to read as
follows:

Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,
and 167; 7 CFR 2.22, 2.80, and 371.2(c).

Sec. 318.13-2 [Amended]

2. In Sec. 318.13-2, paragraph (b), the list of fruits and
vegetables would be amended by adding, in alphabetical order, ``Durian
(Dirio zibethinus).''
3. In Sec. 318.13-4f, paragraphs (a) and (b)(4)(iii) would be
revised to read as follows:

Sec. 318.13-4f Administrative instructions prescribing methods for
irradiation treatment of certain fruits and vegetables from Hawaii.

(a) Approved irradiation treatment. Irradiation, carried out in
accordance with the provisions of this section, is approved as a
treatment for the following fruits and vegetables: Abiu, atemoya,
carambola, litchi, longan, papaya, rambutan, and sapodilla.
(b) * * *
(4) * * *
(iii) Litchi and longan from Hawaii may not be moved interstate
into Florida. All cartons in which litchi or longan are packed must be
stamped ``Not for importation into or distribution in FL.''
* * * * *
4. A new Sec. 318.13-4i would be added to read as follows:

Sec. 318.13-4i Administrative instructions; conditions governing the
movement of green bananas from Hawaii.

Green bananas (Musa spp.) of the cultivars ``Williams,''
``Valery,'' and dwarf ``Brazilian'' may be moved interstate from Hawaii
with a certificate issued in accordance with Secs. 318.13-3 and 318.13-
4 of this subpart if the bananas meet the following conditions:
(a) The bananas must be picked while green and packed for shipment
within 24 hours after harvest. If the green bananas will be stored
overnight during that 24-hour period, they must be stored in a facility
that prevents access by fruit flies;
(b) No bananas from bunches containing prematurely ripe fingers
(i.e., individual yellow bananas in a cluster of otherwise green
bananas) may be harvested or packed for shipment;
(c) The bananas must be inspected by an inspector and found free of
plant pests as well as any of the following defects: prematurely ripe
fingers, fused fingers, or exposed flesh (not including fresh cuts made
during the packing process); and
(d) The bananas must be packaged for interstate movement in a pest-
proof shipping container or carton.

Done in Washington, DC, this 4th day of June 1998.
Charles P. Schwalbe,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-15403 Filed 6-9-98; 8:45 am]
BILLING CODE 3410-34-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-15403. Public record. Not legal advice.