Fruit From Hawaii

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 97-005-2]

Fruit From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are allowing abiu, atemoya, longan, rambutan, and sapodilla

to be moved interstate from Hawaii if the fruit undergoes irradiation

treatment at an approved facility. Treatment may be conducted either in

Hawaii or in non-fruit fly supporting areas of the mainland United

States. The fruit will also have to meet certain additional

requirements, including packaging requirements. We are also allowing

durian to be moved interstate from Hawaii if the durian is inspected

and found free of certain plant pests. In addition, we are allowing

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 will 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.

EFFECTIVE DATE: November 30, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Staff

Officer, Phytosanitary Issues Management Team, 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. The regulations are 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.''

On June 10, 1998, we published in the Federal Register (63 FR

31675-31678, Docket No. 97-005-1) a proposal to allow abiu (Pouteria

caimito), atemoya (Annona squamosa x A. cherimola), longan (Dimocarpus

longan), rambutan (Nephelium lappaceum), and sapodilla (Manilkara

zapota) to be moved interstate from Hawaii if, among other things, the

fruits undergo irradiation treatment in accordance with Sec. 318.13-4f

of the regulations. We also proposed to allow durian (Durio zibethinus)

to be moved interstate from Hawaii if it is inspected and found free of

plant pests. In addition, we proposed to allow green bananas (Musa

spp.) of the cultivars ``Williams,'' ``Valery,'' and dwarf

[[Page 65646]]

``Brazilian'' to be moved interstate from Hawaii under certain

conditions.

We solicited comments concerning our proposal for 60 days ending

August 10, 1998. We received five comments by that date. They were from

representatives of industry and State governments. One commenter

supported the proposal rule in its entirety. The remaining four

commenters expressed concerns about portions of the proposed rule.

Their concerns are discussed below.

Comment: The proposed rule should require each irradiation facility

to have in place a set of standard operating procedures before the

facility is approved by the Animal and Plant Health Inspection Service

(APHIS).

Response: In order to be approved by APHIS, each irradiation

facility must meet certain operating standards and enter into a

compliance agreement with APHIS, in accordance with Sec. 318.13-

4f(b)(2)(iii). Therefore, no changes to the proposal appear necessary

in response to this comment.

Comment: Treatment record requirements should be clarified for

Hawaiian fruits treated by irradiation on the mainland United States.

Section 318.13-4f(b)(4)(i)(C) specifies that fruits irradiated in

Hawaii for subsequent interstate movement are required to be labeled

with treatment lot numbers, packing and treatment facility

identification and location, and dates of packing and treatment. It is

not clear, however, whether Hawaiian fruits treated by irradiation on

the mainland United States are subject to comparable labeling

requirements. In order to maintain the identity of a shipment treated

at any location and to expedite inspections at the port of destination,

all irradiated Hawaiian fruits, whether treated in Hawaii or on the

mainland United States, should be subject to these same labeling

requirements. In addition, all irradiated Hawaiian fruit should be

accompanied by a document or labeling that provides information on the

absorbed minimum dose of irradiation.

Response: In Hawaii, irradiated shipments could, if treated or

handled improperly, be reinfested with fruit flies. Therefore, we

established certain labeling requirements for shipments of fruits and

vegetables irradiated in Hawaii to aid in traceback if those shipments

were found to contain fruit flies upon arrival on the mainland United

States. Since the mainland United States does not have established

populations of fruit flies, and irradiation facilities will be located

in non-fruit fly-supporting areas of the mainland, the risk of

reinfestation of shipments irradiated on the mainland United States is,

at best, negligible. Therefore, we do not believe that it is necessary

to require similar labeling of shipments irradiated on the mainland

United States.

Further, it is standard procedure for irradiation facilities to

supply the person who commissions the irradiation of fruit or

vegetables with a document stating the minimum absorbed dose of the

irradiation treatment. Therefore, we do not feel that it is necessary

to label boxes with that information.

Comment: APHIS should require that irradiated fruit be labeled so

that consumers can easily differentiate irradiated fruit from

organically grown fruit.

Response: The labeling of irradiated fruit falls under the

jurisdiction of the Food and Drug Administration (FDA). Under the FDA's

regulations at 21 CFR 179.26(c), concerning irradiated foods not in

package form (e.g., loose fresh fruits and vegetables), an irradiation

logo and phrase (e.g., ``Treated with radiation'' or ``Treated by

irradiation'') must be displayed to the purchaser of the food either by

labeling of the bulk container plainly in view; a counter sign, card,

or other appropriate device bearing the required information; or

individual labels on each item of food. In any case, the information

must be prominently and conspicuously displayed to purchasers.

Therefore, no changes to the proposal appear necessary in response to

this comment.

Comment: APHIS should reconsider its proposal to allow durian and

green bananas to move interstate to the mainland United States without

a quarantine treatment. Durian and green bananas both have the

potential to carry pink hibiscus mealybug (Maconellicoccus hirsutus)

(PHM). PHM occurs in Hawaii, attacks more than 200 different plants,

and is considered to be a serious threat to American agriculture.

Inspection is not sufficient to mitigate the risk of the introduction

of PHM on durian and green bananas from Hawaii.

Response: We consider PHM a serious plant pest, but we disagree

that inspection is not sufficient to mitigate the risk of the

introduction of PHM on durian and green bananas from Hawaii. PHM is

easily detectable by inspection because when fruits are infested with

PHM, they are covered, to at least some degree, with the white waxy

coating of the mealybug, which is clearly visible on fruits and

vegetables. We successfully inspect a variety of untreated commodities,

including avocados, bananas, citrus fruits, peppers, and tomatoes,

imported into the United States from many different countries for the

presence of PHM. Therefore, we are making no changes to the proposal in

response to this comment.

Comment: This proposal should be postponed until it is determined

whether Hawaii will build an irradiation facility. If Hawaii does not

build its own irradiation facility, there will be no irradiated

Hawaiian fruit to move interstate under the provisions outlined in the

proposal.

Response: This rule allows abiu, atemoya, longan, rambutan, and

sapodilla to be moved interstate from Hawaii if the fruit undergoes

irradiation treatment at an approved facility in Hawaii or in non-fruit

fly supporting areas of the mainland United States. Therefore, the

presence of an irradiation facility in Hawaii is not necessary to

enable Hawaiian fruits to move interstate under this rule.

Comment: It is unclear from the proposal whether untreated abiu,

atemoya, longan, rambutan, and sapodilla moving from Hawaii to the

mainland United States for irradiation treatment may move into or

through all States on the mainland or just certain States. Allowable

ports of entry should be identified in advance and should be consistent

with those ports considered safe for the entry of other untreated fruit

fly host shipments intended for cold treatment upon arrival.

Response: In accordance with Sec. 318.13-4f(b)(1), all untreated

fruits and vegetables moving from Hawaii to the mainland United States

for irradiation treatment may not move into or through the States of

Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana,

Mississippi, Nevada, New Mexico, North Carolina, South Carolina,

Tennessee, Texas, or Virginia, except that certain movements are

allowed through Dallas/Fort Worth, TX. Dallas/Fort Worth is authorized

as an approved stop for air cargo, and as a transloading location for

shipments that arrive by air and then are loaded into trucks for

overland movement from Dallas/Fort Worth into an authorized State by

the shortest route. We are considering allowing untreated fruits and

vegetables moving from Hawaii to the mainland United States for

irradiation treatment to move to other locations on the mainland United

States where cold treatment of fruit flies has been approved. If it

appears that movement to these additional locations would be

appropriate, we will propose that change in the Federal Register.

Comment: Citrus should be added to the list of fruit approved for

movement interstate from Hawaii with irradiation treatment.

[[Page 65647]]

Response: We are currently reviewing data to determine the pest

risk associated with the movement of irradiated citrus from Hawaii to

the mainland United States. If, after review, it appears that citrus

may safely move interstate from Hawaii with irradiation treatment, we

will propose that change in the Federal Register.

Comment: Because green bananas are not a fruit fly host, pest-proof

containers or cartons should not be required for the interstate

movement of green bananas from Hawaii.

Response: Because research shows that harvested bananas gradually

become susceptible to fruit fly infestation, we believe that it is

necessary to require a measure of protection against possible

infestation. However, we agree that producers should have flexibility

in the way that they meet this requirement. Therefore, in this final

rule, Sec. 318.13-4i(d) will read: ``The bananas must be safeguarded

from fruit fly infestation from the time that they are packaged for

shipment until they reach the port of arrival on the mainland United

States.'' This will allow producers to use either pest-proof shipping

cartons, pest-proof shipping containers (e.g., air or sea containers),

or other means, such as loading the bananas into a cold storage

facility or packing the bananas in a carton fully covered by plastic or

netting, to ensure that harvested bananas are protected from fruit fly

infestation.

Comment: Green bananas of the cultivars `Grand Nain' and standard

`Brazilian' should be allowed to move interstate from Hawaii to the

mainland United States under the same provisions outlined in the

proposal for certain other cultivars of green bananas.

Response: We agree. At the time that we were developing our

proposal, it was our understanding that ``Grand Nain'' and standard

``Brazilian'' bananas were either not grown commercially in Hawaii or

were grown in such limited quantities in Hawaii that there would be no

interest in moving them interstate to the mainland United States.

Therefore, we omitted these cultivars of green bananas from our

proposal. This comment, however, makes it clear that there is interest

in moving these cultivars of green bananas to the mainland United

States. Research conducted concurrently with research on the other

cultivars of green bananas proposed for interstate movement from Hawaii

indicates that green bananas of the cultivars ``Grand Nain'' and

standard ``Brazilian'' can be safely moved interstate under the same

conditions outlined in the proposal for green bananas of the cultivars

``Williams,'' ``Valery,'' and dwarf ``Brazilian.'' Therefore, in this

final rule, Sec. 318.13-4i includes green bananas of the cultivars

``Grand Nain'' and standard ``Brazilian.''

Therefore, for the reasons given in the proposed rule and in this

document, we are adopting the proposed rule as a final rule, with

changes discussed in this document.

Effective Date

This is a substantive rule that relieves restrictions and, pursuant

to the provisions of 5 U.S.C. 553, may be made effective less than 30

days after publication in the Federal Register. Immediate

implementation of this rule is necessary to provide relief to those

persons who are adversely affected by restrictions we no longer find

warranted. Therefore, the Administrator of the Animal and Plant Health

Inspection Service has determined that this rule should be effective

upon publication in the Federal Register.

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.

We are allowing abiu, atemoya, longan, rambutan, and sapodilla to

be moved interstate from Hawaii if the fruit undergoes irradiation

treatment at an approved facility. Treatment may be conducted either in

Hawaii or in non-fruit fly supporting areas of the mainland United

States. The fruit will also have to meet certain additional

requirements, including packaging requirements. We are also allowing

durian to be moved interstate from Hawaii if the durian is inspected

and found free of certain plant pests. In addition, we are allowing

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 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 fewer 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 will 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 will

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

[[Page 65648]]

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 moved 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 will benefit from the

interstate movement of abiu, atemoya, durian, green bananas, longan,

rambutan, and sapodilla from Hawaii because these growers will 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,

we do not expect this rule to 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 will

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 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 does not require administrative proceedings

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 final rule have been

submitted for approval to the Office of Management and Budget (OMB).

When OMB notifies us of its decision, we will publish a document in the

Federal Register providing notice of the assigned OMB control number

or, if approval is denied, providing notice of what action we plan to

take.

Lists 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, we are amending 7 CFR part 318 as follows:

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

1. The authority citation for part 318 continues 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 is amended by adding, in alphabetical order, ``Durian (Durio

zibethinus).''

3. In Sec. 318.13-4f, paragraphs (a) and (b)(4)(iii) are 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 is 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,'' ``Grand Nain,'' and standard 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

[[Page 65649]]

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 safeguarded from fruit fly infestation from

the time that they are packaged for shipment until they reach the port

of arrival on the mainland United States.

Done in Washington, DC, this 19th day of November 1998.

Craig A. Reed,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-31714 Filed 11-27-98; 8:45 am]

BILLING CODE 3410-34-P