Importation of Fruits and Vegetables; Papayas From Brazil and Costa Rica

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 96-046-5]

Importation of Fruits and Vegetables; Papayas From Brazil and

Costa Rica

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations governing the importation of

fruits and vegetables into the United States to allow, under certain

conditions, the importation of papayas from Brazil. The conditions for

the importation of papayas from Brazil include requirements for

growing, treating, packing, and shipping the papayas; for field

sanitation; and for fruit fly trapping in papaya production areas. We

are also amending the regulations to apply these same conditions to the

importation of papayas from Costa Rica. These actions will allow for

the importation of papayas from Brazil and Costa Rica while continuing

to provide protection against the introduction of injurious plant pests

into the United States. This rule provides importers and consumers in

the United States with an additional source of papayas.

EFFECTIVE DATE: March 13, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Campbell, Import

Specialist, Phytosanitary Issues Management Team (PIMT), PPQ, APHIS,

4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

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 fruit flies and other

injurious plant pests that are new to or not widely distributed within

and throughout the United States.

On March 25, 1997, we published in the Federal Register (62 FR

14037-14044, Docket No. 96-046-1) a proposal to amend the regulations

by allowing certain previously prohibited fruits and vegetables to be

imported into the United States from certain parts of the world under

specified conditions.

One of the fruits that we proposed to allow to be imported into the

United States was the Solo type papaya (Carica papaya) from Brazil.

Because fully ripe papayas can be hosts of several serious plant pests,

including the Mediterranean fruit fly (Ceritatis capitata) (Medfly) and

the South American fruit fly (Anastrepha fraterculus), we proposed to

allow the importation of Solo type papayas from Brazil only under

certain conditions. The proposed conditions were based on research

conducted in Brazil, Costa Rica, and Hawaii and were modeled after the

provisions in Sec. 319.56-2w of the regulations for papayas from Costa

Rica. The conditions proposed were as follows:

1. The papayas were grown and packed for shipment to the United

States in the State of Espirito Santo.

2. Beginning at least 30 days before harvest began and continuing

through the completion of harvest, all trees in the area where the

papayas were grown were kept free of papayas that were one-half or more

ripe (more than one-quarter of shell surface yellow), and all culled

and fallen fruit were removed from the field at least twice a week.

3. When packed, the papayas were less than one-half ripe (shell

surface no more than one-quarter yellow, surrounded by light green) and

appeared to be free of all injurious plant pests.

4. The papayas were packaged so as to prevent access by fruit flies

or other injurious plant pests, and the package does not contain any

other fruit, including papayas not qualified for importation into the

United States.

5. All activities described in provisions 1 through 4 above were

carried out under the supervision and direction of plant health

officials of the national Ministry of Agriculture.

6. Beginning at least 1 year before harvest began and continuing

through the completion of harvest, fruit fly traps were maintained in

the field where the papayas were grown. The traps were placed at the

rate of 1 trap per hectare and were checked for fruit flies at least

once a week by plant health officials of the national Ministry of

Agriculture. Fifty percent of the traps were of the McPhail type, and

50 percent of the traps were of the Jackson type. The national Ministry

of Agriculture kept records of the fruit fly finds for each trap,

updating the records each time the traps were checked, and made the

records available to the Animal and Plant Health Inspection Service

(APHIS) upon request. The records were maintained for at least 1 year.

7. All shipments of papayas must be accompanied by a phytosanitary

certificate issued by the national Ministry of Agriculture stating that

the papayas were grown, packed, and shipped in accordance with the

provisions of this section.

We solicited comments concerning our proposal for 60 days ending

May 27, 1997. We received 11 comments by that date. They were from

representatives of industry and State governments. Six of the

commenters supported the proposed rule in its entirety. The remaining 5

commenters had reservations about specific provisions of the proposed

rule. Of those 5 commenters, 3 commenters had concerns about the

proposed importation of papayas from Brazil. Upon further review and

consideration of this issue, we decided to finalize all portions of our

March 27, 1997, proposed rule except the portion concerning papayas

from Brazil. (See Docket No. 96-046-3 at 62 FR 50231-50237, September

25, 1997.)

We published another document in the Federal Register on September

25, 1997, (Docket No. 96-046-2, 62 FR 50260-50262) that reopened and

extended the comment period on that portion of the proposed rule

concerning the importation of papayas from Brazil, and also proposed

additional conditions for the importation of papayas from Brazil and

Costa Rica. These additional conditions included hot water treatment

and a requirement that certain actions be taken if Medfly captures

reached certain levels in papaya production areas. These additional

conditions were proposed to help further prevent the

[[Page 12384]]

introduction into the United States of plant pests, including fruit

flies, that may be associated with the papayas.

Comments on the proposed conditions for importing papayas from

Brazil and Costa Rica, including the additional conditions, were

required to be received on or before October 27, 1997. We received 32

comments by that date. They were from representatives of industry,

universities, and State governments, and from a member of Congress.

Eight commenters supported the provisions of the proposal, including

the additional conditions. The remaining 24 commenters expressed

various concerns about the proposal. Their concerns are discussed

below.

Comment: APHIS acknowledges that Medfly and South American fruit

fly pose a significant risk to American agriculture. APHIS also

acknowledges that these pests meet the international criteria for

designation as quarantine pests. Further, APHIS recognizes that papayas

from Brazil are coming from an area infested with Medfly and South

American fruit fly. Therefore, because of the pest risk posed by the

importation into the United States of papayas from Brazil, the proposal

should be withdrawn.

Response: The North American Plant Protection Organization (NAPPO)

defines ``quarantine pest'' as a ``pest of potential economic

importance to the area endangered thereby and not present in that area,

or present there but not widely distributed and being officially

controlled.'' 1 Based on this definition, we agree that

Medfly and South American fruit fly are quarantine pests that, if

established in the United States, could cause economic losses to U.S.

producers of fruit fly host crops. Therefore, in order to prevent the

introduction and establishment in the United States of Medfly and South

American fruit fly, we allow foreign fruit fly host crops to be

imported into the United States only under the following conditions:

(1) If those crops originate from a fruit fly-free area; or (2) if

those crops are treated with an approved treatment that has been

determined to prevent the adult emergence of fruit flies; or (3) if

those crops are subject to other appropriate and effective mitigation

measures, such as a combination of phytosanitary measures, taken to

prevent the introduction of fruit flies into the United States.

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\1\ NAPPO Compendium of Phytosanitary Terms, February 1996.

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The State of Espirito Santo, Brazil, where papayas for importation

into the United States will be grown, does have established populations

of both Medfly and South American fruit fly. However, in order to be

eligible for importation into the United States, papayas from Espirito

Santo, Brazil, must be grown, treated, packed, and shipped in

accordance with certain phytosanitary requirements imposed to ensure

that the papayas do not introduce these pests into the United States.

The most important of these requirements is that the papayas for

importation must be less than one-half ripe. Research conducted in

Brazil, as well as other research, including surveys and studies

conducted prior to the papaya import program in Costa Rica, and our

experience conducting the Costa Rican papaya import program,

demonstrates that papayas in any stage of ripeness are not a preferred

host for Medfly or South American fruit fly. This research also shows

that papayas that are less than one-half ripe are not a host for Medfly

or South American fruit fly. For example, in a study conducted in

Brazil, more than 100,000 papayas of all ripeness degrees, green to

fully ripe (entirely yellow), were collected in commercial groves in

Espirito Santo. Under these natural conditions, none of the papayas,

not even fully ripe papayas, contained fruit fly larvae. Under forced

conditions (e.g., cage tests, where Medfly and South American fruit fly

are confined in cages with ripening papayas), Medfly and South American

fruit fly only attacked fully ripe papayas. Therefore, we are confident

that papayas from Brazil that are less than one-half ripe present a

negligible risk of introducing Medfly or South American fruit fly into

the United States.

As an additional precaution, however, we proposed other mitigation

measures, in the form of phytosanitary requirements, for papayas from

Brazil before they may be imported into the United States. These

mitigation measures include field sanitation measures to ensure that

culls or fallen fruit, which may attract Medfly or South American fruit

fly, are kept out of papaya production areas; packing requirements to

ensure that once the papayas are picked and packed, they will not be

susceptible to fruit fly infestation; hot water treatment to further

reduce the pest risk associated with the papayas; and trapping

requirements to monitor the fruit fly population in papaya production

areas and to take action if that population exceeds a certain level.

These additional phytosanitary requirements form a systems approach to

pest mitigation; that is, these conditions constitute a framework of

overlapping, redundant safeguards that together minimize the pest risk

associated with papayas from Brazil.

In light of all of these factors, we believe that there is an

insignificant risk of introducing Medfly or South American fruit fly in

shipments of papayas imported into the United States from Brazil.

Therefore, we are making no changes to the proposal in response to this

comment.

Comment: If the risk of pest introduction associated with Brazilian

papayas is so great as to prohibit their movement into Hawaii, then the

fruit should also be barred from entering other States that have crops

and climates adequate to support the establishment of Medfly and South

American fruit fly populations. Examples of such States are Florida,

California, Texas, and Arizona. We believe that the proposal

discriminates against the continental growers of papayas in favor of

Hawaiian growers.

Response: Papayas from Brazil will not be allowed to move into

Hawaii because of the papaya fruit fly (Toxotrypana curvicauda). Papaya

fruit fly does not occur in Hawaii, but it is reported to occur in

other U.S. papaya production areas. As such, papaya fruit fly is not a

quarantine pest for most places in the United States, but it is for

Hawaii. Papaya fruit fly occurs in Brazil, but has only been reported

in areas outside of commercial papaya production areas. However, Brazil

does not have any official controls in place to prevent the spread of

papaya fruit fly into commercial papaya production areas. As such, we

are prohibiting the movement of papayas from Brazil and Costa Rica into

Hawaii as a precautionary measure to prevent the introduction of papaya

fruit fly into Hawaii. This final rule includes a requirement at

Sec. 319.56-2w(f) that all cartons in which papayas are packed must be

stamped ``Not for importation into or distribution in HI.'' However,

for the reason discussed above, we are not restricting the movement of

papayas from Brazil into papaya-producing areas on the mainland United

States.

Comment: Why, if Hawaii is required to spend several hundreds of

thousands of dollars on treatment chambers in order to move Hawaiian

papayas interstate to the mainland United States, are locations like

Brazil and Costa Rica free to send papayas to the mainland United

States without treatments?

Response: Because of the occurrence of Oriental fruit fly, a pest

that will attack papayas in all ripeness stages, papayas from Hawaii

must undergo a stand-alone treatment that will prevent

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the adult emergence of fruit flies. The treatment may be conducted

either prior to interstate movement to the mainland United States or in

a non-fruit fly-supporting area of the mainland United States. At

present, the approved treatments for fresh papayas from Hawaii are

vapor-heat treatment, in accordance with Sec. 318.13-4b; irradiation

treatment, in accordance with Sec. 318.13-4f; and high temperature

forced air treatment, in accordance with the PPQ Treatment Manual,

incorporated by reference at Sec. 300.1. In Brazil and Costa Rica,

where Oriental fruit fly does not occur, a systems approach to pest

management that does not include a stand-alone treatment to prevent the

adult emergence of fruit flies has been determined to be adequate to

mitigate the risk of introducing into the United States injurious plant

pests that may be associated with the papayas.

Comment: Hawaii experiences a higher level of fruit fly infestation

in its papayas because of incidences of blossom end defect, a defect

found in some Solo type papayas. The increased risk of fruit fly

infestation associated with blossom end defect in papayas from Brazil

has not been addressed by the phytosanitary requirements in the

proposal. It would be impossible to detect larval infestations in

papayas with blossom end defect at the U.S. port of arrival because

APHIS inspections at the port of arrival are only a very small sampling

of total imports. Measures, including additional treatment of papayas,

should be taken to mitigate this risk before papayas from Brazil are

allowed into the United States.

Response: Certain Hawaiian papayas exhibit blossom end defect,

which occurs from abnormal placental growth near the blossom end of the

fruit. Papayas with blossom end defect have a scar on the blossom end

of the fruit and, as a result of the defect, may have a small opening

in the skin and flesh of the fruit that leads into the seed cavity of

the papaya. This defect is associated with a high risk of infestation

of Oriental fruit fly, but no written reports associate blossom end

defect with infestation of Medfly or South American fruit fly. While an

exceedingly high density of Oriental fruit fly exists in Hawaii,

Oriental fruit fly does not occur in Brazil or Costa Rica. As such, we

do not believe that the presence of blossom end defect in papayas from

Brazil or Costa Rica increases the pest risk associated with the

importation of those papayas. Therefore, we are making no changes to

the proposal in response to this comment.

Comment: If Medflies do not infest less than one-half ripe papayas,

as the proposal indicates, how did the Hawaiian papaya program allow

fruit flies to enter California inside one-quarter ripe fruit?

Response: In February 1987, the California Department of Food and

Agriculture (CDFA) found live Oriental fruit fly larvae in 13 quarter-

ripe papayas that had moved interstate from Hawaii to the mainland

United States with a hot water treatment consisting of a two-stage hot

water dip. All of the infested papayas exhibited blossom end defect. At

that time, Hawaii believed that further introductions of Oriental fruit

fly onto the mainland United States could be prevented by safeguards

instituted in packinghouses in Hawaii. All papayas exhibiting

unevenness in ripening (through surface color of the papaya), a symptom

of blossom end defect, would be removed from shipments of papayas

moving to the mainland at the packinghouse. In 1989, however, CDFA

again discovered live Oriental fruit fly larvae in Hawaiian papayas

that had been treated with a two-stage hot water dip, but as before,

all of the infested papayas exhibited blossom end defect. Therefore, we

subsequently discontinued the interstate movement of papayas from

Hawaii that had been treated with the two-stage hot water treatment.

As noted above, Oriental fruit fly does not occur in Brazil or

Costa Rica. Therefore, we remain confident that less than one-half ripe

papayas from Brazil and Costa Rica present an insignificant risk of

introducing fruit flies into the United States.

Comment: APHIS allows papayas from Belize to be imported without

treatment only if the papayas originate from a Medfly-free area in

Belize. Papayas may be imported from other parts of Belize that are not

Medfly-free areas only with treatment for Medfly. The conditions for

the importation of papayas from Brazil need to match the conditions for

the importation of papayas from Belize. Therefore, as it has for

papayas from Belize, APHIS needs to require a stand-alone treatment

that will prevent the adult emergence of fruit flies for all papayas

originating from a Medfly-infested area.

Response: Under Sec. 319.56-2t, papayas from Belize are eligible

for importation into the United States without treatment if the papayas

originate from the Medfly-free districts of Cayo, Corozal, or Orange

Walk, or from the Medfly-free portion of the district of Stann Creek,

in Belize. Under Sec. 319.56-2x, papayas from other districts of Belize

are eligible for importation into the United States if the papayas are

treated for Medfly. However, no papayas from Belize may enter Hawaii

because of the risk of introducing papaya fruit fly (Toxotrypana

curvicauda) into Hawaii.

The regulations for the importation of papayas from Belize do not

provide any requirements for the ripeness of papayas eligible for

importation into the United States; papayas imported from Belize may be

of any ripeness, including fully ripe. In addition, the regulations for

the importation of papayas from districts in Belize that are not

Medfly-free do not provide conditions for the growing, packing, or

shipping of papayas. Therefore, no measures are required in those areas

in Belize where Medfly occurs to prevent Medfly infestation of papayas.

As such, we require that papayas originating from an area of Belize

that is not Medfly-free undergo a treatment that prevents the adult

emergence of Medfly.

Unlike the requirements for papayas from Belize, the requirements

for papayas from Brazil and Costa Rica concentrate on preventing fruit

fly infestation of the papayas. As discussed earlier, we proposed a

systems approach for the importation of papayas from Brazil and Costa

Rica that includes requirements for the ripeness of papayas eligible

for importation; requirements for the growing, packing, and shipping of

the papayas; and requirements for trapping in papaya production areas.

Taken together, these phytosanitary measures are as effective in

preventing the introduction of Medfly into the United States as a

treatment designed to prevent the adult emergence of Medfly. Therefore,

we are making no changes to the proposal in response to this comment.

Comment: For the proposed systems approach, APHIS has not supplied

objectively measured, statistically valid quantification of either the

risks themselves or the efficacy of each individual mitigation measure.

Without such measurements, such a program has no validity, no standard

for evaluation, and, in fact, no substance.

Response: Research from Brazil and Costa Rica substantially

demonstrates that there is very little risk involved with importing

papayas that are one-half or less ripe into the United States. Yet to

further reduce the pest risk associated with papayas from Brazil, we

are requiring certain phytosanitary measures be taken in the fields and

packinghouses of Brazil and Costa Rica, as discussed earlier. However,

each individual measure is not intended to act as a stand-alone

treatment for Medfly, South American fruit fly, or any other pest.

These are overlapping,

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redundant measures that collectively form a systems approach to the

importation of papayas from Brazil. Therefore, we see no need to assess

the efficacy of each part of the systems approach, but to determine the

effectiveness of the components as a whole. Assessment of the

phytosanitary measures, and of the success of the Costa Rican papaya

import program, which is based on similar measures, demonstrate that

the systems approach we will apply to the importation of papayas from

Brazil is effective in minimizing the pest risk associated with the

importation of papayas from Brazil to an insignificant level.

Comment: Taken together, do the conditions of the systems approach

to manage the pest risk associated with Brazilian papayas ensure a

probit 9 level of quarantine security?

Response: Individually, the conditions included in the systems

approach are not adequate to reduce to an acceptable level the risk of

the introduction into the United States of injurious plant pests; in

other words, no one condition is intended as a stand-alone treatment

for the pests associated with papayas from Brazil. Taken together,

however, the conditions for papayas from Brazil are sufficient to

mitigate the risk of the introduction of injurious plant pests

associated with papayas from Brazil.

Probit 9 level of security refers to a level of effectiveness for a

treatment. Probit 9 security means that no more than 32 out of

1,000,000 treated individuals (such as fruit flies) will pass through

treatment and still emerge as adults. Determining the efficacy of the

Brazilian papaya systems approach is very different from determining

the efficacy of a probit 9 treatment. As discussed earlier, research

has shown that less than one-half ripe papayas are not a host for

Medfly or South American fruit fly, so we would not expect to find

Medfly or South American fruit fly in papayas imported from either

Brazil or Costa Rica. The addition of other multiple safeguards for

papayas from Brazil and Costa Rica will ensure quarantine security.

As mentioned earlier, under a systems approach similar to the one

proposed for papayas from Brazil, papayas from Costa Rica have been

imported into the United States since 1992, and the Costa Rican system

has proven successful against the introduction of exotic plant pests

into the United States in papayas from Costa Rica.

Comment: No reliable, peer-reviewed research exists that adequately

demonstrates that Solo type papayas that are less than one-half ripe

pose little risk of harboring Medfly or South American fruit fly.

Therefore, it must be concluded that Solo type papayas that are less

than one-half ripe are hosts for Medfly and South American fruit fly.

As such, APHIS should not allow Brazilian papayas to enter the United

States unless a stand-alone quarantine treatment, such as vapor heat or

irradiation treatment, is required for the papayas.

Response: The research conducted by officials in Brazil, Costa

Rica, and Hawaii was critically reviewed by U.S. Department of

Agriculture (USDA) personnel and found to be satisfactory. This

research demonstrates that less than one-half ripe papayas (shell

surface no more than one-quarter yellow, surrounded by light green) are

not a host for Medfly or South American fruit fly. Further, field and

cage tests conducted in Costa Rica and Brazil demonstrate that fully-

ripe papayas are not a preferred host of Medfly or South American fruit

fly.

In field tests in Costa Rica, papayas were purposely left on trees

so that all stages of ripeness were represented at all times, and

fields growing papayas for survey were not treated with pesticides.

Approximately 100,000 papayas were examined over the course of 3 years.

No Anastrepha spp. of fruit flies were found in any of the papayas,

even in almost fully ripe fruits, and no Medflies were found in papayas

that were one-half ripe or less. In those 100,000 papayas, only 6

Medfly larvae were found in fruit that was three-quarters ripe or more.

Those 6 larvae, plus trap catches in the areas where research was

conducted in Costa Rica, indicate that Medflies were present in the

area, but that Medflies do not prefer papayas, especially papayas that

are less than one-half ripe.

Further, in forced tests in Costa Rica, no Medfly or Anastrepha

spp. larvae were found in papayas that were green to quarter-ripe, and

only one larva was found in a half-ripe papaya.

In addition, as discussed earlier, in field tests in Brazil, over

100,000 papayas of all ripeness stages (green to fully ripe) were

collected in papaya groves. No fruit flies were found in any of the

papayas. Therefore, in the Brazilian survey, even when fruit was

allowed to fully ripen in the field, it did not contain any fruit fly

eggs or larvae. Further, in forced tests in Brazil, oviposition (i.e.,

the laying of eggs) was only evident in fully ripe or overripe papayas.

The results of these tests and the tests conducted in Costa Rica

confirm that papayas that are less than one-half ripe are not hosts of

Medfly or South American fruit fly. Therefore, we are making no changes

to the proposed rule in response to this comment.

Comment: The research conducted in Brazil, on which you based your

proposal to allow papayas from Brazil to be imported into the United

States, should not be so old. The experiments need to be conducted

again in order to affirm that Espirito Santo's papayas are free of

fruit fly infestation. Experiments and studies also need to be carried

out for a longer period of time. In addition, the research should

include information on more than three farms of unknown size and

location.

Response: The research that Brazil provided for our review was

determined to be sufficient by USDA quarantine specialists employed by

the Agricultural Research Service of USDA. The date of the research

does not appear to be relevant, but in any case, the research conducted

in Brazil was not the only research we used to support our proposal to

allow papayas from Brazil to be imported into the United States. As

discussed earlier, we also based our decision to propose the

importation of papayas from Brazil on research conducted in Costa Rica

and Hawaii. Therefore, we see no need for additional research in order

to finalize this proposal.

Comment: In APHIS' June 1995 technical report (``Determination of

`Solo' Papaya Status as Fruit Fly (Tephritidae) Host in Espirito Santo

State, Brazil, With Quarantine Objectives''), the following quotation

was attributed to Jiron and Hedstrom (1988): ``In Costa Rica, except

the papaya fruit fly, all tephritid fruit flies do not infest in

natural conditions the solo-type papayas before an advanced degree of

ripeness is reached.'' Papaya was not a part of this study.

Additionally, in the same technical report, APHIS states that 50

papayas of each ripeness stage were harvested in the entire orchard in

one of the tests conducted in Brazil. If papayas were collected from

the entire orchard, does that mean that some of those papayas were

collected from insecticide-treated areas?

Further, the authors of the technical report conclude that trap

catches indicate that Medfly and South American fruit fly do not prefer

papayas; I disagree with this conclusion. Trap catches will not

indicate fruit fly preference; a choice test will do this.

Response: Regarding the quote attributed to Jiron and Hedstrom, we

agree that the citation is incorrect, but the content of the statement

(i.e., that fruit flies do not infest in natural conditions Solo type

papayas before an

[[Page 12387]]

advanced degree of ripeness is reached) is accurate.

In response to the question concerning the collection of papayas,

no insecticides were applied to areas where papayas were harvested for

tests conducted in Brazil.

Regarding one of the conclusions of the technical report, the

authors used the word ``indicate'' as a synonym for ``suggest,'' and

field and cage tests, including a choice test, proved their suggestion

that Medfly and South American fruit fly do not prefer papayas. We

regret any misunderstanding, however, and believe it would have been

more appropriate to say that trap catches and field and cage tests

indicate that papaya is not a preferred host of Medfly or South

American fruit fly.

Comment: If no insecticide was applied in areas where papayas were

harvested for this test, which insecticides were applied in other

areas? Were these areas surrounding the experimental areas? This may

have interfered with fruit fly population density.

Response: During field experiments, no insecticides were applied in

experimental fields in Brazil, and, based on trapping data, we know

that fruit flies were present in those fields. Therefore, during field

tests, fruit flies could have infested the papayas, but, as discussed

earlier, no fruit fly larvae were found in papayas at any stage of

ripeness.

Brazil's research does not provide information on the types of

insecticides, if any, applied in other areas. However, we do not

believe that the application of pesticides in other areas, including

areas surrounding experimental fields, would have significantly

affected fruit fly populations in experimental fields.

Based on the time of year, ambient temperature, and other factors,

the density of the fruit fly population in a given area fluctuates

naturally. For that and the other reasons discussed, we designed, as

part of our systems approach for the importation of papayas from Brazil

and Costa Rica, trapping thresholds for Medfly and South American fruit

fly to either trigger mitigation measures or halt papaya imports into

the United States from specific papaya production areas in Brazil.

These trapping thresholds, combined with the other components of our

systems approach for the importation into the United States of papayas

from Brazil, will provide protection against the introduction into the

United States of Medfly and South American fruit fly.

Comment: In the Brazilian experiments, if stage 4 and 5 papayas

(papayas more than one-half ripe) were examined for larvae in the same

day of harvest, why were they not examined for fruit fly eggs the same

day of harvest as well? Why were stage 1, 2, and 3 papayas (1 and 2

being less than one-half ripe, 3 being half-ripe) only left at room

temperature for 2-4 days? Medfly eggs hatch in 4 days, but may require

longer. Also, why was the number of pupae emerging from the papaya not

looked into? The number of pupae should have been assessed.

Response: The life stages of a fruit fly occur in order as follows:

egg, larva, pupa, adult. The experiments conducted in Brazil focused on

examinations for fruit fly larvae for two reasons. First, fruit fly

eggs are more difficult to detect during inspection than fruit fly

larvae. Second, if fruit fly eggs are detected during inspection, it is

impossible to determine, without waiting for the eggs to hatch, whether

those eggs will hatch viable larvae that will develop into adults. For

those reasons, no papayas, including stage 4 and 5 papayas, were

examined for fruit fly eggs.

In examining for larval development in papayas, the Brazilian

experiments concentrated on finding the earliest life stage that is

readily detectable and that marks the progress of a viable, fertile,

adult fruit fly. Stage 1, 2, and 3 papayas were left at room

temperature for 2-4 days because that amount of time allows for larvae

in the fruit to develop to a sufficient size for easy detection.

Because of the lack of larvae finds in Brazilian papayas, it was

not necessary to assess the number of pupae emerging from papayas. If

there are no larvae, then there will be no pupae.

Comment: In Brazil's 1993 field cage test, how many cages were used

per test? In the 1993 tests, the number of fruit flies per cage is

quite low considering the dimensions of the cage. In the 1994 field

cage test, how many fruit flies were used per cage? In both tests, were

the flies used fertile? What is the proportion of ripe to green fruit

in the cages for each test?

Response: In the five cage tests conducted during 1993-94, one cage

was used per test. In certain tests, there was an average of 50 female

Medflies released per cage, and in other tests, between 17 and 41

female South American fruit flies released per cage. We believe that

those are sufficient numbers to ensure valid tests.

The fruit flies used in all of the tests were fertile, as is

evident from the fruit fly larvae found in fully-ripe and overripe

papayas that were used in the cage tests.

The proportion of stage 1 papayas to stage 5 papayas in the cage

tests varied from approximately 1:1 to approximately 2:1.

Comment: During cage tests, what were the ambient conditions in the

infestation cages during oviposition periods?

Response: The ambient conditions during oviposition periods were

not reported, but because of the fruit fly larvae detections in ripe

and overripe fruit used in tests, it is evident that those conditions

were suitable for survival of the eggs.

Comment: Since a two-choice test (guava vs. papaya) was conducted

in 1994, was a one-choice test considered after?

Response: No. The two-choice test was conducted in 1994, after a

single choice test had already been administered in 1993. We do not

believe that it is necessary to re-administer a single choice test when

the results from the first were available and acceptable.

Comment: Are the conditions (fruit fly trap catches, sanitation of

papaya fields, etc.) of Guanacaste, San Jose, and Punta Arenas, Costa

Rica similar to those in Espirito Santo, Brazil?

Response: Generally, yes, and areas in both Costa Rica and Brazil

that are producing papayas for importation into the United States have

to meet the same requirements, with the exception that areas in Costa

Rica do not have a threshold requirement for South American fruit fly

captures because South American fruit fly does not occur in Costa Rica.

The Anastrepha spp. that occurs in Costa Rica feeds on different hosts

than Brazil's South American fruit fly, and is not under any

circumstances a pest of papaya.

Comment: Even if papayas are considered an occasional host of both

Medfly and South American fruit fly, the presence of unsanitary field

conditions (e.g., abandoned fields) may cause papayas in Brazil to

become common hosts for both Medfly and South American fruit fly.

Response: According to research conducted in Brazil and Costa Rica,

only fully ripe papayas may be considered an occasional host of Medfly

or South American fruit fly.

Further, under our systems approach, papayas from Brazil and Costa

Rica will only be allowed to be imported into the United States if they

are grown, packed, and shipped under the conditions specified in this

rule, which include field sanitation measures and trapping in

production areas. If there are abandoned groves nearby, and these

groves draw fruit flies to commercial papaya production areas, trapping

will

[[Page 12388]]

detect increasing fruit fly populations, and control measures or, if

necessary, a halt to shipments will be required if fruit fly

populations exceed stated levels. The trapping requirements and

thresholds are discussed in detail below. Therefore, we are making no

changes to the proposal in response to this comment.

Comment: The proposed fruit fly trapping requirements are

inadequate for quarantine security. No traps are required in highly

sensitive areas, such as sites of other fruit-fly host plants, packing

houses, abandoned groves, or cull piles. The stated thresholds for

action are so high as to be meaningless; an infestation would have to

be of enormous proportion to yield an average Jackson trap catch of

greater than 7 Medflies per trap per week for an area the size of the

State of Espirito Santo. A trapping threshold of one gravid female

fruit fly or two adult male flies would be more in line with the

biology of a reproducing population. The seven fly figure would be a

more appropriate trigger to drop areas from the program. Also,

infestations limited to a concentrated range are not addressed.

Further, no actions or thresholds are given for South American fruit

fly. The trapping requirement should be modified to account for these

issues.

Response: The main safeguard against fruit fly introduction into

the United States is that less than one-half ripe papaya is not a host

of Medfly or South American fruit fly. The trapping requirements we

proposed guard against ``high infestation pressure'' in production

fields, and each farm's weekly average of Medfly and South American

fruit fly captures per trap will be individually calculated. First, we

are establishing specific requirements for the placement, types, and

monitoring of fruit fly traps in papaya production fields.

Specifically, we are requiring that beginning at least 1 year before

harvest begins and continuing through the completion of harvest, fruit

fly traps must be maintained in the field where the papayas were grown.

The traps must be placed at a rate of 1 trap per hectare and must be

checked for fruit flies at least once weekly by plant health officials

of the national Ministry of Agriculture. Fifty percent of the traps

must be of the McPhail type, and fifty percent of the traps must be of

the Jackson type.

Second, we are establishing trapping thresholds that will trigger

action if the fruit fly population in a papaya production area is too

large. Specifically, in order to monitor the Medfly levels in

commercial papaya production areas, we are establishing a threshold for

Medfly captures in papaya production areas of Brazil and Costa Rica.

The thresholds are as follows: If the average Jackson trap catch is

greater than 7 Medflies per trap per week, measures, which may include

Malathion bait sprays or other chemical sprays, must be taken to

control the Medfly population in the production area. If the average

Jackson trap catch exceeds 14 Medflies per trap per week, importations

of papayas from that production area would be halted until the rate of

capture drops to an average of 7 or fewer Medflies per trap per week.

In addition, based on this and other comments, we are also

establishing a threshold for South American fruit fly captures in

papaya production areas of Brazil at Sec. 319.56-2w(j). The thresholds

are as follows: If the average McPhail trap catch is greater than 7

South American fruit flies per trap per week, measures, which may

include Malathion bait sprays or other chemical sprays, must be taken

to control the South American fruit fly population in the production

area. If the average McPhail trap catch exceeds 14 South American fruit

flies per trap per week, importations of papayas from that production

area would be halted until the rate of capture drops to an average of 7

or fewer South American fruit flies per trap per week.

These thresholds for Medfly and South American fruit fly trapping

will help detect increasing populations of these fruit flies in growing

areas and will help ensure that these fruit flies are not associated

with imports of papayas.

The thresholds stated are adequate because we are not requiring

that areas in Espirito Santo, Brazil, be pest-free for eligibility to

export papayas to the United States. We only want to ensure that fruit

fly populations do not exceed an acceptable level in papaya production

areas in Brazil.

APHIS does not believe that high fruit fly populations in abandoned

groves or near cull piles represent a threat to commercial papaya

growing areas. If high populations are generated by abandoned groves or

cull piles, and those populations move into a commercial papaya

production area, then trapping in the commercial area will identify a

problem, and additional mitigation measures, including halting

importations of papayas from that commercial production area until

fruit fly captures reach an acceptable level, will be taken.

Comment: The average Medfly catch for Vaversa farm was 50.44

Medflies per trap per week. Therefore, in accordance with the proposed

trapping thresholds, this farm would not be eligible to export papayas

to the United States. What was the Medfly weekly trap catch for Honey

Fruit, Agrobas, and Exofruit farms?

Response: In 1996, the annual average Medfly catch for Vaversa farm

was 50.44 Medflies per week. However, there were 20 traps on Vaversa

farm, so the annual average of Medflies per trap per week was 2.522

Medflies, a number well below the proposed thresholds of 7 Medflies per

trap per week to begin mitigation measures in papaya production areas

or 14 Medflies per trap per week to halt papaya imports into the United

States.

Yet, under the proposal, a farm's eligibility to export papayas to

the United States would not be decided annually based on the annual

average per trap per week, but decided weekly based on the weekly

average per trap. Therefore, if the program had been active in 1996,

and if Vaversa farm had met all of the other conditions of the

regulations, it would have been eligible to export papayas to the

United States during all weeks except those when the trapping

thresholds exceeded 14 Medflies per trap per week. Additionally, during

all weeks when the Medfly catch exceeded 7 flies per trap per week,

mitigation measures would have been required to reduce the Medfly

population in the production area.

The 1994 average Medfly weekly trap catch for Honey Fruit farm

amounted to .05 flies or fewer per trap per week. The 1994 average

Medfly weekly trap catch for Agrobas farm amounted to .10 flies or

fewer per trap per week. The 1994 average Medfly weekly trap catch for

Exofruit farm also amounted to .10 flies or fewer per trap per week.

Comment: Caliman, Vaversa, and Gaia farms all have a weekly trap

average higher than 7 South American fruit flies per trap per week.

Based on South American fruit fly captures, would these farms be

eligible to export papayas to the United States? What is the South

American fruit fly weekly trap catch for Honey Fruit, Agrobas, and

Exofruit farms?

Response: Although we believe papayas of any ripeness to be poor

hosts for South American fruit fly, as discussed above, we are

establishing trapping thresholds for South American fruit fly in papaya

production areas in Espirito Santo, Brazil. These trapping thresholds

will require that mitigation measures be taken if more than 7 South

American fruit flies per trap per week are captured in a papaya

production area. Further, if more than 14 South American fruit flies

per trap per week are captured in a papaya production area, exports of

papayas from that area will halt until the level of captures of

[[Page 12389]]

South American fruit flies drops to a maximum of 7 South American fruit

flies per trap per week. These thresholds will help monitor and reduce

the South American fruit fly population in papaya production areas in

Espirito Santo, Brazil.

Just as with Medfly trapping thresholds, South American fruit fly

trapping thresholds will be based on the average weekly trap catch, and

a farm's eligibility to export papayas to the United States will be

determined on a week-to-week basis as a result of the number of South

American fruit flies captured per trap per week.

Based on the data provided by Brazil, the 1994 average South

American fruit fly weekly trap catch for Caliman farm amounted to 2.3

flies or fewer per trap per week. The 1994 average South American fruit

fly weekly trap catch for Vaversa farm amounted to 1.2 flies or fewer

per trap per week. The 1994 average South American fruit fly weekly

trap catch for Gaia farm amounted to 3.2 flies or fewer per trap per

week. The 1994 average South American fruit fly weekly trap catch for

Honey Fruit farm amounted to 2.08 flies or fewer per trap per week. The

1994 average South American fruit fly weekly trap catch for Exofruit

farm amounted to 1 fly or fewer per trap per week. The 1994 average

South American fruit fly weekly trap catch for Agrobas farm amounted to

9.1 flies or fewer per trap per week. Under the provisions outlined in

this document, during those weeks when a farm registers more than 7

South American fruit flies per trap per week, mitigation measures to

reduce the fruit fly population in the papaya production area must be

taken.

Comment: The use of simple averages to determine trap counts is

insufficient. For example, if 1 trap out of 30 catches 200 fruit flies,

and the other traps do not catch any fruit flies, the average for those

30 traps would be 6.7 flies, a figure below the required average of 7

flies per trap per week to begin mitigation measures. However, the

papayas near the trap that catches 200 flies would be at a high risk

for infestation. Therefore, another method of determining fruit fly

population density should be considered.

Response: We believe that averages are sufficient to determine a

papaya production area's eligibility to import papayas into the United

States. Variations in trap catches will occur among traps in a given

production area, but prior trapping data indicates that your scenario

is highly unlikely. However, if this situation occurs, required

recordkeeping will identify areas where fruit fly populations are

concentrated, and we will investigate the conditions in those areas,

including ensuring that the surrounding traps are properly baited, that

field sanitation has been performed in compliance with the regulations,

and that, if necessary, bait spray treatments are applied to reduce

fruit fly populations around traps with excessive fruit fly catches.

Therefore, we are making no changes to the proposal in response to this

comment.

Comment: In response to a request for information, APHIS supplied

trapping data for only three farms in 1996. There are far more than

three farms in Espirito Santo. If this limited data constitutes all of

the available data, how can a sound decision be made regarding the

importation of papayas from Brazil?

Response: In response to a request for information, APHIS supplied

1994 trapping data for six farms, the total number of farms in Espirito

Santo, and 1996 trapping data for three farms. This data, provided by

Brazil, indicates the relative fruit fly population density and types

of fruit flies in papaya production areas in Espirito Santo. We believe

that the trapping data was adequate to enable us to design a systems

approach for the importation of papayas from Brazil that is sufficient

to prevent the introduction of Medfly and South American fruit fly into

the United States.

The regulations will require fruit fly traps to be maintained in

papaya production areas in Brazil and Costa Rica beginning at least 1

year before harvest begins and continuing through the completion of

harvest. The traps must be placed at the rate of 1 trap per hectare and

must be checked for fruit flies at least once a week by plant health

officials of the national ministry of agriculture. Records of the fruit

fly finds for each trap, updated each time the traps are checked, must

be kept and must be made available to APHIS upon request. Prior to the

commencement of papaya shipments from any papaya production area in

Brazil or Costa Rica, we will review that most current fruit fly

trapping information to determine which farms will be eligible to

export their papayas to the United States and which farms will have to

take mitigation measures to lower the fruit fly population in the area

before exporting papayas to the United States.

Comment: The 1996 trapping report for three farms in Espirito

Santo, Brazil, did not state the trap density; without this

information, we cannot assume that the traps were placed at 1 trap per

hectare.

Response: The placement of 1 trap per hectare is a requirement for

the shipment of papayas to the United States from Brazil and Costa Rica

under the systems approach outlined in this document. It was not a

requirement for research; the trapping data mentioned was used to

determine the relative fruit fly population density and types of fruit

flies present in papaya production areas in Espirito Santo, Brazil.

This information helped us decide whether to proceed with rulemaking,

and to design a systems approach for the importation of papayas from

Brazil. Further, on the farms in Espirito Santo that continue to trap

for Medfly and South American fruit fly, traps are placed at a rate of

1 trap per hectare, and we believe that number is adequate to indicate

fruit fly populations in those papaya production areas.

Comment: Papaya production areas in Brazil have not met the 1-year

trapping requirement.

Response: Brazil has provided USDA with trapping records for 1993-

1994 and 1996, and continues to trap for fruit flies in papaya

production areas. For shipment of Brazilian papayas to the United

States, we are requiring that beginning at least 1 year before harvest

begins and continuing through the completion of harvest, fruit fly

traps be maintained in the field where the papayas are grown. The traps

must be placed at a rate of 1 trap per hectare and must be checked for

fruit flies at least once weekly by plant health officials of the

Brazilian Ministry of Agriculture. Therefore, we will not approve the

importation of papayas from any production areas in Brazil unless those

production areas provide the required current trapping data. At

present, two farms in Espirito Santo have met the 1-year requirement

for trapping.

Comment: APHIS' description of eligible papayas as ``less than one-

half ripe'' is vague, difficult to convey to field personnel in Brazil,

and impossible for U.S. inspectors to verify or enforce. The

description should be more specific.

Response: In our proposal, we used the phrase ``less than one-half

ripe'' to describe the papayas that we proposed for entry into the

United States from Espirito Santo, Brazil. However, we specifically

stated that when picked, the papayas must appear as follows: ``shell

surface no more than one-quarter yellow, surrounded by light green.''

That explanation appears in the regulations and is a detailed and

accurate description of quarter-ripe papayas.

For papaya growers, the standard industry practice for harvesting

fruit abides by the following system: stage 1 and stage 2 papayas,

papayas less than one-half ripe, are harvested for export;

[[Page 12390]]

stage 3 papayas, papayas that are one-half ripe, may be harvested for

sale in the domestic market of the country or region in which the

papaya production field is located; stage 4 and stage 5 papayas,

papayas more than one-half ripe, may be used only for local

consumption. This industry practice helps ensure that papayas arrive at

market with an adequate shelf life. Brazil has successfully exported

papayas to the European Union, Canada, and Argentina for many years,

and in doing so, Brazilian papaya producers routinely follow the

standard industry practice of harvesting papayas that are less than

one-half ripe for export.

Because of these factors, we do not expect any confusion about the

ripeness of the papayas that will be eligible for importation into the

United States. Therefore, we are making no changes to the proposed rule

in response to this comment.

Comment: To require someone on the line in a packing house to

accurately determine that a particular papaya's shell surface is no

more than one-quarter yellow surrounded by light green as thousands of

papayas move along the conveyor belt is asking too much. Even a

vigilant and careful inspector could not be expected to find papayas

that are one-half or more ripe in that sea of papayas.

Response: The determination of each papaya's ripeness will not be

made as the papayas are moving along a conveyor belt; ripeness will be

determined in the field as the papayas are picked and again in the

packing house as the papayas are placed in cartons for shipment to the

United States. In these instances, when individual attention is given

to each papaya, a determination of ripeness is easily made.

Further, this method of determining ripeness has proven successful

for the importation into the United States of papayas from Costa Rica.

Therefore, we believe that it is an effective and reliable way to

ensure that only papayas that are less than one-half ripe are imported

into the United States from Brazil and Costa Rica.

Comment: A maturity index based on surface color of papayas is not

a reliable method for determining the infestability of papayas.

Response: We disagree. The field and cage tests conducted in Brazil

and Costa Rica, as discussed earlier, prove that the surface color of

papayas is an adequate determinant of the infestability of these

papayas.

Comment: Data regarding the levels of benzyl isothiocyanate (BITC)

in Brazilian papayas, the correlation between the concentration of this

chemical and quantified color stages of Brazilian papayas, or the

effects of BITC on South American fruit fly should be presented before

papayas from Brazil are allowed to enter the United States.

Response: BITC, a naturally occurring chemical in papayas, has been

determined to deter fruit fly oviposition in papayas, and when fruit

fly eggs are laid in papayas, to prevent the survival of those eggs.

The chemical is most concentrated in green papayas, and gradually

dissipates as the papayas mature and ripen.

We do not feel that it is necessary to examine levels of BITC in

Brazilian papayas, the correlation between the concentration of this

chemical and quantified color stages of Brazilian papayas, or the

effects of BITC on South American fruit fly for papayas from Brazil.

Our decision to allow papayas from Espirito Santo, Brazil, to be

imported, under certain conditions, into the United States was based,

in part, on research that demonstrates that papayas of all ripeness

stages, using color as an indicator of ripeness, are not preferred

hosts for Medfly or South American fruit fly. Further, this research

demonstrates that less than one-half ripe papayas are not a host of

Medfly or South American fruit fly in Brazil. As discussed earlier,

researchers in Brazil tested papayas at all stages of ripeness, where

the determinant of the ripeness was the surface color of the papayas.

In field tests, no fruit flies were found in any of the papayas,

regardless of ripeness. In forced tests, fruit flies only occasionally

attacked fully-ripe or overripe papayas (surface color entirely

yellow).

Based on this and other research and on the success of the Costa

Rican papaya program, we believe that using color as an indicator of

ripeness, and therefore of resistance to fruit fly infestation, is

sufficient to prevent the introduction of Medfly and South American

fruit fly into the United States. Therefore, we are making no changes

to the proposed rule in response to this comment.

Comment: Studies in which objective colorimetric measurements of

Brazilian papayas are correlated to natural or forced infestation by

Medfly or South American fruit fly should be conducted before papayas

from Brazil are allowed to enter the United States.

Response: We do not agree that colorimetric measurements,

measurements taken by a machine that looks at a portion of the surface

color of the exterior of a commodity and generates a graph to indicate

the ripeness of that commodity, are essential to determining whether

less than one-half ripe papayas from Brazil are susceptible to

infestation by Medfly or South American fruit fly. We believe that

visual inspection of the papayas, as used in the research conducted in

Brazil, serves the same purpose as colorimetric measurements and, in

fact, is more effective because, unlike colorimetric measurements,

visual inspection takes into account the range of colors on the entire

exterior of the fruit.

The visual ripeness index we are using for papayas from Brazil is

the same as the one currently in use for papayas from Costa Rica. The

Costa Rican system of determining papaya ripeness has proven to be

effective in ensuring that only less than one-half ripe papayas are

imported into the United States.

Therefore, we are making no changes to the proposal in response to

this comment.

Comment: APHIS should cut open papayas from Brazil arriving in the

United States to determine if larvae are present, and the papayas

should be inspected for eggs and held for pupal emergence.

Response: As a condition of entry, all fruits and vegetables

imported into the United States are subject to inspection for injurious

plant pests at the port of first arrival. If the papayas show any signs

of pest infestation, including soft spots, bruises, or small holes in

the surface, the papayas will be cut open and examined by a USDA

inspector. Because of the systems approach that will be required of

papayas to be imported from Brazil and Costa Rica, there is no need to

examine papayas that do not exhibit any signs of pest infestation, or

hold papayas for larval emergence, at the U.S. port of arrival.

Therefore, we are making no changes to the proposal in response to this

comment.

Comment: Two disease-causing organisms, Cercospera mamaonis and

Phomopsis carica-papayae, are not addressed by the proposed risk

mitigation measures. Measures should be taken to reduce the risk of the

introduction of these fungi into the United States.

Response: We expect that the proposed hot water treatment,

consisting of 20 minutes in water at 49 deg.C (120.2 deg.F), will

reduce the risk of the introduction into the United States of

Cercospera mamaonis and Phomopsis carica-papayae, as well as any other

injurious plant pests that may be associated with the papayas. However,

as a condition of entry, all fruits and vegetables imported into the

United

[[Page 12391]]

States are subject to inspection for injurious plant pests at the port

of first arrival. Both Cercospera mamaonis and Phomopsis carica-papayae

are visually detectable by inspection. If inspectors at the U.S. port

of arrival determine that a shipment of papayas is infested with pests

of concern, including Cercospera mamaonis and Phomopsis carica-papayae,

that shipment will be either treated, destroyed, or re-exported to

prevent dissemination of the pests in the United States. Therefore, we

are making no changes to the proposed rule in response to this comment.

Comment: The proposed hot water treatment will not reduce the

likelihood that papayas will introduce injurious plant pests into the

United States, and it is certainly not a sufficient treatment to attain

probit 9 quarantine security in regard to Medfly larvae in papayas.

Twenty minutes at 120.2 degrees Fahrenheit is just one part of a longer

2 stage treatment which APHIS abolished for Hawaiian papayas in 1991

due to its ineffectiveness against larvae of Medfly and Oriental fruit

fly. Moreover, that original treatment called for papayas to be one-

quarter ripe, not one-half ripe as proposed for Brazilian papaya.

Medfly requires a hot water treatment of approximately 48 degrees

Celsius for 50 minutes to reach thermal death of eggs and larvae; no

information is available regarding the efficacy of hot water treatment

on Anastrepha species. This proposed requirement should be

reconsidered.

Response: As recommended by quarantine specialists with Agriculture

Research Services, USDA, the proposed hot water treatment for papayas

from Brazil is one component of a systems approach; it is not intended

to be a stand-alone treatment for Medfly or South American fruit fly.

Taken together, the components of the systems approach are sufficient

to mitigate the risk of the introduction of Medfly and South American

fruit fly, as well as other injurious plant pests, into the United

States.

The hot water treatment that was in effect for the post harvest

quarantine treatment of Hawaiian papaya was designed to reduce the risk

of the interstate movement of Medfly, Oriental fruit fly, and melon fly

to the mainland United States. However, because the treatment proved to

be ineffective against Oriental fruit fly in papayas that exhibit

blossom end defect, APHIS withdrew the use of the 2-stage hot water

treatment for Hawaiian papayas. While Hawaii has a high population of

Oriental fruit fly in Hawaii, Oriental fruit fly does not occur in

Brazil or Costa Rica. Therefore, we are making no changes to the

proposal in response to this comment.

Comment: PPQ's Treatment Manual does not contain an approved hot

water treatment for papayas. Additionally, a design for a treatment

facility has not been approved, nor a process tested and approved, nor

are APHIS personnel required to be present at a hot water treatment

facility, in the fields, or in the packing houses. Therefore, we

question the efficacy of such a treatment. The proposal does not

specify whether facilities that will conduct the hot water treatment

for Brazilian papayas will have to be approved by APHIS or will have to

meet certain performance standards. We suggest that these facilities

either be approved or be required to achieve certain standards prior to

the importation into the United States of papayas from Brazil.

Response: Hot water treatment of papayas for export from Brazil is

standard industry practice, but it is not a probit 9 stand-alone

treatment. We are requiring it as one component of a systems approach

to the importation into the United States of papayas from Brazil.

Therefore, the hot water treatment need not be approved as a stand-

alone treatment would be, nor do the facilities that will conduct the

hot water treatment need to be approved. The specifications of the

treatment will be in the regulations, and, therefore, do not need to

appear in the PPQ Treatment Manual. However, when papayas from Brazil

are imported into the United States, the Brazilian Ministry of

Agriculture is required to certify that hot water treatment has been

conducted, as required. Therefore, we are making no changes to the

proposed rule in response to this comment.

Comment: What is the probit 9 hot water treatment for South

American fruit fly?

Response: We are not aware of a probit 9 hot water treatment for

South American fruit fly.

Comment: The proposal does not specify quarantine security measures

for packing areas. Such security measures should be considered.

Response: We agree. In response to this comment, we are adding at

Sec. 319.56-2w(e) a provision that papayas from Brazil and Costa Rica

must be safeguarded from exposure to fruit flies from harvest to

export. This would require that from the moment the papaya is picked

from the tree to the time that it reaches the United States, including

in packing houses in Brazil and Costa Rica, the papaya will be

safeguarded from fruit fly infestation. In order to meet this

provision, trucks that move papayas from the orchard to the packing

house will have to be covered or screened in some manner that prevents

access by fruit flies. The packing house will also have to be

constructed so as to prevent entry by fruit flies. Finally, the cartons

that the papaya is shipped in will have to be fruit fly-proof or

covered by fruit fly-proof material. This provision will help reduce

the risk of the introduction into the United States of Medfly, South

American fruit fly, and other pests that may be associated with papayas

from Brazil and Costa Rica.

Comment: Culls and fallen fruit are to be ``removed from the field

at least twice a week,'' but there is no provision for the destruction

of culls and fallen fruit.

Response: We agree that there should be a requirement for the

destruction of culls and fallen fruit. Therefore, we are adding a

provision at Sec. 319.56-2w(b) that culls and fallen fruit must be

buried, destroyed, or removed from the farm. This provision will help

reduce the risk of increased Medfly and South American fruit fly

populations in and near papaya production areas in Brazil.

Comment: Does the sanitation procedure described in the proposal

apply to backyards? What is the manpower allocated to perform this

task?

Response: No, the sanitation procedure does not apply to backyards

in Brazil because the conditions set out in the regulations will

preclude the eligibility of backyard papayas for importation into the

United States.

The manpower assigned to keep commercial papaya production fields

clean will be determined by individual papaya producers in Brazil and

will vary according to the needs of those producers to achieve the

desired results.

Comment: How can APHIS guarantee that all papaya trees in Espirito

Santo will be kept free of one-half or more than one-half ripe papayas?

Response: Only commercial papaya production areas in Espirito Santo

that grow papayas from importation into the United States will be

required to be kept free of one-half or more than one-half ripe

papayas. Besides the fact that it is standard industry practice to keep

trees in commercial papaya production areas free of fruit that is one-

half or more ripe, this program will be supervised by the Brazilian

Ministry of Agriculture and monitored by APHIS. Therefore, we are

confident that this requirement will be met.

Comment: APHIS should take a more active role in monitoring the

harvesting, packing, and shipping of papayas under the proposed

protocol, and a trust fund agreement should be established to pay

[[Page 12392]]

for U.S. inspectors in the fields, packing houses, and ports in Brazil.

The proposed systems approach depends on the full and careful

compliance of Brazilian workers who have little or no training or

experience in making sure each of the proposed conditions is met.

Certain conditions, such as the hot water treatment, require precise

monitoring. In addition, Brazilian papaya producers arguably have a

conflict of interest in fully enforcing these conditions. Without an

established performance history, there is no basis to conclude that

Brazilian workers or the Brazilian Ministry of Agriculture will

unfailingly meet the requirements of the regulations.

Response: In the initial phases of the Brazilian papaya program,

APHIS's International Services (IS) employees will visit the production

and packing areas to ensure that the components of the systems approach

are being met, and throughout the program, these APHIS employees will

act as a ready resource for the Brazilians.

Regarding the compliance of the Brazilians, as discussed earlier,

Brazil has been exporting its papayas to the European Union, Canada,

and Argentina for many years; therefore, in Brazil, papaya producers

and their employees have experience and training in preparing papayas

for export. Further, most of the conditions that we are requiring for

the importation of papayas from Brazil are standard industry practice;

normal commercial practice includes picking papayas for export when the

papayas are green or less than half ripe, maintaining a high degree of

sanitation in production areas, and treating the fruit with a hot water

treatment to inhibit disease. Other conditions, such as trapping

measures, have been in use for several years in order to provide data

for this action.

We do not agree that meeting the conditions for importation is a

conflict of interest for Brazilian workers; Brazilian producers and

their employees want to be eligible to export fresh, healthy papayas to

the United States that will compete well in the U.S. market. Therefore,

deviation from required phytosanitary measures would not be in the

self-interest of the Brazilians.

Therefore, we are making no changes to the proposed rule in

response to this comment.

Comment: If the Environmental Protection Agency (EPA), in

accordance with the Food Quality Protection Act (FQPA), reassesses and

subsequently cancels all tolerances for malathion, would that prevent

the importation of malathion-treated papayas? If not, how would State

and Federal officials contain and eliminate future Medfly outbreaks?

Finally, what other pesticides might be used in Brazil and Costa Rica

to ensure the same level of safety as malathion and might these

pesticides also be subject to FQPA restrictions?

Response: EPA cannot regulate the use of pesticides in other

countries; therefore, if EPA cancels all tolerances for malathion for

domestic use, the pesticide may still be used in Brazil, Costa Rica,

and other countries. Further, even if malathion may no longer be used

as a treatment in the United States, malathion-treated papayas would

still be permitted to be imported into the United States if the papayas

meet all other applicable requirements, including requirements

contained in EPA regulations at 40 CFR part 180 concerning pesticide

residue tolerances. The EPA regulations would also apply to any other

pesticide residues that may be found on the papayas at the U.S. port of

first arrival. (Other commenters suggested that abamection, dicofol,

endosulfan, tetradifon, and methyl thipphanate may be used on papayas

in Brazil.) With respect to the emergency use of malathion for Medfly

outbreaks in the United States, we have already started using other

methods, including the release of sterile flies, in combination with

malathion to contain and eliminate future Medfly outbreaks, and

continue to explore alternative strategies.

Comment: Chemicals that are not registered by EPA are routinely

applied to papayas in Brazil. Such pesticides include abamectin,

dicofol, endosulfan, tetradifon, and methyl thipphanate. At a minimum,

APHIS should notify the Food and Drug Administration (FDA) that such

pesticides are used on papayas in Brazil so that residue may be checked

at U.S. borders. Additionally, APHIS should notify the Brazilian

government and industry that such pesticides are not permitted on

papayas imported into the United States. Certification that states that

these pesticides have not been used on the papayas should accompany the

papayas to the United States. APHIS should not endanger the health of

the American public by encouraging the importation of products which it

knows to have a high probability of containing illegal pesticides.

Response: Based on information obtained from FDA, APHIS believes

that the issues concerning pesticide residues found on papayas imported

from Brazil are no different than the issues associated with the

importation of produce from any other foreign country.

EPA is responsible for registering pesticides for use in the United

States. EPA also has the responsibility to establish limits, or

tolerances, for pesticide residues in both raw agricultural commodities

and processed foods; these tolerances are located at 40 CFR part 180

and apply to both imported and domestically grown foods. EPA-

established tolerances are commodity specific and represent the maximum

amount of pesticide residue that may legally remain in food. In the

absence of a tolerance, any level of pesticide residue is prohibited.

Currently, EPA regulations do not list tolerances for pesticide

residues of abamectin, dicofol, endosulfan, tetradifon, or methyl

thipphanate on papayas. FDA is responsible for enforcing EPA pesticide

residue tolerances and for determining whether an imported food

violates the Federal Food, Drug, and Cosmetic Act.

FDA collects samples for residue testing early in the marketing

chain to afford the greatest opportunity for determining the source of

illegal residues (e.g., the grower). This system prevents the flow of

further shipments that may contain the same residues. Thus, for

imported foods, FDA collects samples directly at the port of entry. FDA

sampled shipments are not allowed to be marketed until the results of

the FDA testing are known and the shipments are released by the Agency.

When illegal pesticide residues are found in an imported food shipment,

the shipment is refused entry and required to be destroyed or shipped

out of the United States. FDA may also invoke automatic detention of

subsequent related shipments.

In 1994, FDA collected and analyzed a total of 11,348 food samples

for pesticide residues under its regulatory monitoring programs. Of

these, 5,448 samples, or 48 percent, were surveillance samples of

imported foods from 101 countries. Overall, no violative residues were

found in nearly 96 percent of the import surveillance samples, and 67

percent had no residues detected. Less than 1 percent of the import

samples had pesticide residues that exceeded EPA tolerances, a finding

that is about the same as the percentage of domestic samples that

exceeded tolerances. Approximately 3 percent of import samples were

found to contain residues of pesticides for which there is no

established U.S. tolerance for the particular pesticide commodity

combination.

We believe that the mechanisms that have been established to

monitor pesticide residues on imported produce are adequate to detect

if residues found

[[Page 12393]]

on papayas imported from Brazil are in violation of tolerances

established by EPA. Therefore, we are making no changes to the proposed

rule in response to this comment.

Comment: What is the harvest interval after spray for each chemical

pesticide used in papaya production areas in Espirito Santo, Brazil?

Has this work been done according to EPA regulations?

Response: We do not expect liberal pesticide applications to papaya

production areas in Brazil; we expect that pesticides will be applied

when mitigation measures are required in papaya production areas

because of elevated Medfly or South American fruit fly populations.

Therefore, we have not established a required harvest interval after

chemical spray. Further, standard industry practice, including the

required hot water treatment, calls for cleaning the surface of the

papayas to remove as much of the pesticide residue as possible before

the fruit is exported. Regarding EPA regulations, as discussed earlier,

EPA cannot regulate the application of pesticides in foreign countries.

Comment: APHIS' reliance on inspections at the border has been

seriously questioned in a very recent report issued by the General

Accounting Office (GAO). In its report, GAO estimates that foreign

pests are entering the United States at a level that is costing $41

billion annually in lost production and expenses for prevention and

control, and that inspectors are ``struggling to keep pace with

increased workloads'' (GAO Report GAO/RCED-97-102, May 1997).

Response: We believe it is important to emphasize that the

Agricultural Quarantine Inspection (AQI) activities of APHIS are an

important, but not the only, component of our system for safeguarding

plant and animal resources from exotic pests and diseases. Regarding

papayas from Brazil, we have designed a systems approach, with

inspection at the U.S. port of arrival as one component, that provides

protection against the introduction into the United States of injurious

plant pests.

According to the GAO report, USDA estimates that foreign pests are

entering the United States at a level that is costing $41 billion

annually in lost production and expenses for prevention and control. In

terms of imported fruits and vegetables, the greatest risk of plant

pest introduction into the United States is non-commercial shipments of

imported fruits and vegetables, including those entering the United

States in international passenger baggage. Therefore, we do not believe

that the conclusions of the study are relevant to the importation of

commercial shipments of papayas from Brazil or Costa Rica.

Comment: We are concerned about your proposal to allow papayas from

Brazil to be imported into the United States because very recently

Florida had to conduct a costly and inconvenient eradication program

because of a Medfly outbreak in the State.

Response: The recent Medfly outbreak in Florida is a major concern

for us as well, but there is no indication that it was a result of

legally imported fruits and vegetables for consumption. Regarding the

importation of papaya from Brazil and Costa Rica, as discussed, less

than one-half ripe papayas are not a host of Medfly. This final rule

imposes requirements on the importation of papayas from Brazil and

Costa Rica, in the unlikely event that a Medfly is attracted to a

papaya in either country. We are confident that this final rule will

allow papayas from Brazil and Costa Rica to be imported into the United

States while continuing to provide protection against the introduction

of Medfly into the United States.

Comment: The proposal is not in line with the law, which states

that APHIS must take action to ``prevent the dissemination into the

United States'' of plant pests.

Response: We disagree. We have designed a required set of

phytosanitary safeguards, or systems approach, to allow for the

importation of papayas from Brazil while preventing the introduction

and dissemination of injurious plant pests into the United States.

Comment: Both 7 U.S.C. 159 and 160 require a hearing before APHIS

can allow the importation of papayas from Brazil. Until such a hearing

is held, APHIS should not finalize this proposal.

Response: Prior to January 8, 1983, 7 U.S.C. 159 and 160 directed

the Secretary to hold a public hearing before promulgating a

determination to ``restrict'' (7 U.S.C. 159) or ``forbid'' (7 U.S.C.

160) the importation into the United States of plants or plant products

that may result in the introduction of injurious plant pests into the

United States. However, on January 8, 1983, Public Law 97-432 struck

out the provisions in both 7 U.S.C. 159 and 160 directing the Secretary

to hold a public hearing before promulgating a determination regarding

the restriction or prohibition of a plant or plant product's entry into

the United States. We believe the public comment period for this

rulemaking provided adequate opportunity for interested persons to

comment on the proposed rule. Therefore, we are taking no action in

response to this comment.

Comment: An environmental impact assessment should have been

performed for this proposed action, particularly because a fruit fly

infestation in the United States as a result of imported papayas from

Brazil would provoke eradication measures that may include malathion

bait sprays over potentially large rural and urban areas.

Response: An environmental assessment and finding of no significant

impact have been prepared by APHIS for this action. The environmental

assessment provides a basis for our conclusion that the importation

into the United States of papayas from Brazil will not present a

significant risk of introducing plant pests into the United States or

disseminating plant pests within the United States and will not have a

significant impact on the quality of the human environment. Based on

its finding of no significant impact, the Animal and Plant Health

Inspection Service has determined that an environmental impact

statement need not be prepared.

Copies of the environmental assessment and finding of no

significant impact are available for public inspection 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 those documents are

requested to call ahead on (202) 690-2817 to facilitate entry into the

reading room. In addition, copies of the environmental assessment and

finding of no significant impact may be obtained by writing to the

individual listed under FOR FURTHER INFORMATION CONTACT. Please refer

to the title of the environmental assessment when ordering copies.

Comment: In the proposed rule under the heading ``Executive Order

12988,'' APHIS maintained that fresh fruit imported into the United

States remains in foreign commerce until sold to the ultimate consumer

and that, therefore, this rule would preempt State and local laws. It

is not true that tropical fruits, and papayas in particular, remain in

foreign commerce until the product is sold to the ultimate consumer

(i.e., the person who eats the fruit). In fact, the U.S. Customs

Service has determined that produce displayed in bins at retail grocery

stores do not require labeling as to the country of origin because the

retail customer is not the ultimate consumer, the store itself is.

Therefore, papayas sitting in the grocery store are

[[Page 12394]]

no longer in foreign commerce. As such, State and local laws should not

be preempted; they should apply in this case so that a State may

restrict the entry of papayas from Brazil because of the pest risk to

that State.

Response: It is our position that State and local laws and

regulations regarding papayas imported under this rule will be

preempted while the papayas are in foreign commerce. Fresh fruits and

vegetables are generally imported for immediate distribution and sale

to the consuming public, and are considered to 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 the regulations allow a foreign plant or plant part, in this

case papayas, to be imported into a State, that State does not have

authority to refuse the plant or plant part entry, either directly from

the port of arrival, or from another State. The Federal Government

retains jurisdiction over all plants and plant parts while they are in

foreign commerce. If the Secretary of Agriculture does not prohibit or

restrict the importation of a plant or plant part, any such prohibition

or restriction is deemed to be unnecessary. When foreign commerce

ceases is a question of fact that must be addressed in each individual

case. However, the Department of Agriculture has taken the position

that fresh fruits and vegetables imported into the United States for

immediate distribution and sale remain in foreign commerce until they

are sold to the ultimate consumer. Other questions regarding when

foreign commerce ceases must be addressed on a case-by-case basis and

will be resolved based on the facts in each particular case.

For these reasons, a State may not legally prohibit the entry of a

foreign plant or plant part into the State if the plant or plant part

is allowed importation into the State under the regulations. Any State

that believes it should or should not be included as a restricted

destination in the regulations should present its case to the

Administrator of APHIS. Therefore, we are making no changes to the

proposed rule in response to this comment.

Therefore, based on the rationale presented in the May 25, 1997,

proposed rule, the September 25, 1997, document, and this final rule,

we are adopting the provisions of these documents as a final rule with

the changes discussed above.

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 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.

In accordance with 5 U.S.C. 604, we have performed a Final

Regulatory Flexibility Analysis, which is set out below, regarding the

economic impact of this final rule on small entities.

Under the Plant Quarantine Act and the Federal Plant Pest Act (7

U.S.C. 150dd, 150ee, 150ff, 151-167), the Secretary of Agriculture is

authorized to regulate the importation of fruits and vegetables to

prevent the introduction of injurious plant pests.

This rule amends the regulations governing the importation of

fruits and vegetables by allowing papayas from Brazil and Costa Rica to

be imported into the United States under specified conditions. The

importation of papayas from Brazil had been prohibited because of the

risk that they could have introduced injurious plant pests into the

United States. This rule also makes changes to the requirements for

importing papayas from Costa Rica, but those changes are not expected

to have any effect on the volume of papayas exported to the United

States from Costa Rica.

The rulemaking pertaining to papayas from Brazil is based on a pest

risk assessment conducted by APHIS at the request of the Brazilian

Ministry of Agriculture.

In 1995, the United States produced 23,042 metric tons (fresh

equivalent) of papayas for human consumption, valued at $18.5 million.

In 1993 and 1994, the United States produced 28,939 metric tons and

28,123 metric tons, respectively, of papayas for human consumption.

Imports into the United States of fresh papayas have grown rapidly,

to the point where imports now exceed U.S. production levels of papayas

for human consumption. In 1995, the United States imported 33,288

metric tons of fresh papayas, a significant increase over the 1993 and

1994 levels (14,198 metric tons and 18,677 metric tons, respectively).

The increase in U.S. imports of fresh papayas since 1993 is due almost

entirely to increased shipments from Mexico, the source of most U.S.

papaya imports. The United States is a net importer of fresh papayas,

as exports of the commodity from the United States did not exceed 8,293

metric tons in any of the years between 1993 and 1995.

In 1992, papayas were produced on 519 farms in the United States.

It is not known how many of those farms are considered small entities

under Small Business Administration standards, since information on

their sizes is not available. However, most are probably small, since

most U.S. farms whose revenues are derived primarily from the sale of

fruits and tree nuts are considered small.

In 1993, Brazil was the world's largest producer of papayas. In

that year, Brazil produced an estimated 1,750,000 metric tons of

papayas, 30.1 percent of the world's total. No data is available,

however, on the volume of potential exports of this commodity from

Brazil to the United States.

The alternative to this rule was to make no changes in the

regulations. After consideration, we rejected this alternative because

there is no biological reason to prohibit the importation into the

United States of papayas from Brazil.

In our proposal, we solicited comments on the potential effects of

the proposed action on small entities. In particular, we sought data

and other information to determine the number and kind of small

entities that may incur benefits or costs from the implementation of

the proposed rule. We received one comment on the Initial Regulatory

Flexibility Analysis contained in the proposed rule.

The commenter disagreed with our assessment that the proposed rule

would not have a significant impact on small entities in the United

States. The commenter argued that the rule has the potential to have a

significant adverse impact on the approximately 30 papaya growers

located in Florida, all of whom are small in size. The commenter points

out that Brazil, because it is the world's largest papaya producer, has

the potential to flood the U.S. market, effectively driving Florida's

producers out of business. The commenter states that Hawaii and Florida

produce all the

[[Page 12395]]

papayas that are commercially grown in the United States: Hawaii grows

about 2,500 acres of papayas, with a value of $17 million; Florida has

500 acres of papayas, with a value of $3 million. The commenter

suggests, however, that Hawaiian producers will not be directly

affected by the proposal because Brazilian papayas would not be

permitted to move into Hawaii.

We agree that the proposal has the potential to adversely affect

papaya producers in Florida. However, to the extent that an adverse

impact occurs at all, we are not convinced that it will be significant

for most growers.

Growers in Florida and Hawaii could be affected because the

proposal has the potential to reduce the prices at which they are able

to sell their papayas. Those prices would decline if a large volume of

Brazilian papayas were made available in the U.S. market at prices

lower than those currently being accepted by domestic producers. The

volume of potential papaya imports from Brazil will depend on a variety

of factors, such as the extent to which Brazilian imports are price

competitive with papayas produced in the United States and with papayas

imported into the United States from Mexico and elsewhere. The volume

will also depend on the price Brazil receives for its papayas

elsewhere, including its existing export markets. The degree to which

Brazilian imports are price competitive depends, in turn, on several

factors, including production costs in Brazil and the costs of

transporting papayas to the U.S. market.

There is, however, the potential for a considerable volume of

papaya imports from Brazil. Brazil is the world's leading papaya

producer and Espirito Santo, the State within Brazil from which imports

would be allowed, accounts for almost half of Brazil's total papaya

production. In 1991, the State of Espirito Santo produced 134,800 tons

of papayas, 45 percent of Brazil's total papaya production of 299,400

tons. By comparison, production in the United States in 1995 totaled

only 23,042 metric tons (utilized, fresh equivalent).

Nevertheless, there are several reasons that this rule may not have

a significant adverse impact on a substantial number of Florida

growers. First, no more than three or four papaya producers in Florida

grow papayas exclusively or as a primary crop; most grow other crops in

addition to papayas. In Florida, papayas are typically a temporary crop

that is used to fill in the space between rows of newly-planted

permanent crops (e.g., mangoes) until such time as the permanent crops

mature. Therefore, even if Florida papaya growers are adversely

affected by the rule change, the impact on most will not be significant

in terms of their overall operations.

Second, Florida's papaya growers are apparently able to remain

financially viable in the face of sharply increasing imports from

Mexico. This suggests to us that: (1) Florida's growers are able to

successfully adapt to the increased competition by switching to

alternative crops, or (2) papaya sales are not significant in terms of

their overall operations.

Third, the volume of potential imports from Brazil is unknown.

Thus, even if it is assumed that most Florida papaya growers do rely

heavily on papaya sales, there is no basis to conclude that they will

automatically be affected. The commenters speculate that the volume

will be large (relative to U.S. production) on the basis of Brazil's

status as the world's leading papaya producer. However, that

speculation may not be correct, since the volume of imports would

depend on more than just production levels in Brazil. Indeed, it may be

virtually impossible for Brazilian papayas to compete with Mexican

papayas in the U.S. market on the basis of price and quality. Brazilian

imports would be severely disadvantaged because of higher

transportation costs to the U.S. market.

The commenter also argued that this rule is significant and should

have undergone review by the Office of Management and Budget (OMB).

As required by Executive Order 12866, APHIS submitted a description

of the proposed and final rules to OMB.

Executive Order 12988

This rule allows papayas to be imported into the United States from

Brazil. State and local laws and regulations regarding papayas imported

under this rule will be preempted while the fruit is in foreign

commerce. Fresh papayas are generally imported for immediate

distribution and sale to the consuming public, and will 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. 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.

National Environmental Policy Act

An environmental assessment and finding of no significant impact

have been prepared for this rule. The assessment provides a basis for

the conclusion that the importation of papayas from Brazil will not

present a risk of introducing or disseminating plant pests and would

not have a significant impact on the quality of the human environment.

Based on the finding of no significant impact, the Administrator of the

Animal and Plant Health Inspection Service has determined that an

environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact

were prepared in accordance with: (1) The National Environmental Policy

Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), (2) Regulations of the

Council on Environmental Quality for implementing the procedural

provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations

implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing

Procedures (7 CFR part 372).

Copies of the environmental assessment and finding of no

significant impact are available for public inspection 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 copies are requested to

call ahead on (202) 690-2817 to facilitate entry into the reading room.

In addition, copies may be obtained by writing to the individual listed

under FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

In accordance with 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 approved by the Office of

Management and Budget (OMB) under OMB control number 0579-0128.

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 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).

2. Section 319.56-2w is revised to read as follows:

[[Page 12396]]

Sec. 319.56-2w Administrative instruction; conditions governing the

entry of papayas from Brazil and Costa Rica.

The Solo type of papaya may be imported into the continental United

States, Alaska, Puerto Rico, and the U.S. Virgin Islands from the State

of Espirito Santo, Brazil, and the provinces of Guanacaste, San Jose,

and Puntarenas, Costa Rica, only under the following conditions:

(a) The papayas were grown and packed for shipment to the United

States in the State of Espirito Santo, Brazil, or in the provinces of

Guanacaste, San Jose, and Puntarenas, Costa Rica.

(b) Beginning at least 30 days before harvest began and continuing

through the completion of harvest, all trees in the field where the

papayas were grown were kept free of papayas that were \1/2\ or more

ripe (more than \1/4\ of the shell surface yellow), and all culled and

fallen fruits were buried, destroyed, or removed from the farm at least

twice a week.

(c) The papayas were treated with a hot water treatment consisting

of 20 minutes in water at 49 deg.C (120.2 deg.F).

(d) When packed, the papayas were less than \1/2\ ripe (the shell

surface was no more than \1/4\ yellow, surrounded by light green), and

appeared to be free of all injurious insect pests.

(e) The papayas were safeguarded from exposure to fruit flies from

harvest to export, including being packaged so as to prevent access by

fruit flies and other injurious insect pests. The package containing

the papayas does not contain any other fruit, including papayas not

qualified for importation into the United States.

(f) All cartons in which papayas are packed must be stamped ``Not

for importation into or distribution in HI.''

(g) All activities described in paragraphs (a) through (f) of this

section were carried out under the supervision and direction of plant

health officials of the national Ministry of Agriculture.

(h) Beginning at least 1 year before harvest begins and continuing

through the completion of harvest, fruit fly traps were maintained in

the field where the papayas were grown. The traps were placed at a rate

of 1 trap per hectare and were checked for fruit flies at least once

weekly by plant health officials of the national Ministry of

Agriculture. Fifty percent of the traps were of the McPhail type, and

fifty percent of the traps were of the Jackson type. If the average

Jackson trap catch was greater than 7 Medflies per trap per week,

measures were taken to control the Medfly population in the production

area. The national Ministry of Agriculture kept records of fruit fly

finds for each trap, updated the records each time the traps were

checked, and made the records available to APHIS inspectors upon

request. The records were maintained for at least 1 year.

(i) If the average Jackson trap catch exceeds 14 Medflies per trap

per week, importations of papayas from that production area must be

halted until the rate of capture drops to an average of 7 or fewer

Medflies per trap per week.

(j) In the State of Espirito Santo, Brazil, if the average McPhail

trap catch was greater than 7 South American fruit flies (Anastrepha

fraterculus) per trap per week, measures were taken to control the

South American fruit fly population in the production area. If the

average McPhail trap catch exceeds 14 South American fruit flies per

trap per week, importations of papayas from that production area must

be halted until the rate of capture drops to an average of 7 or fewer

South American fruit flies per trap per week.

(k) All shipments must be accompanied by a phytosanitary

certificate issued by the national Ministry of Agriculture stating that

the papayas were grown, packed, and shipped in accordance with the

provisions of this section.

(Approved by the Office of Management and Budget under control

number 0579-0128)

Done in Washington, DC, this 10th day of March 1998.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-6536 Filed 3-12-98; 8:45 am]

BILLING CODE 3410-34-P