[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65645-65649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31714]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 318
[Docket No. 97-005-2]
Fruit From Hawaii
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are allowing abiu, atemoya, longan, rambutan, and sapodilla
to be moved interstate from Hawaii if the fruit undergoes irradiation
treatment at an approved facility. Treatment may be conducted either in
Hawaii or in non-fruit fly supporting areas of the mainland United
States. The fruit will also have to meet certain additional
requirements, including packaging requirements. We are also allowing
durian to be moved interstate from Hawaii if the durian is inspected
and found free of certain plant pests. In addition, we are allowing
certain varieties of green bananas to move interstate from Hawaii under
certain conditions intended to ensure the bananas' freedom from plant
pests, including fruit flies. These actions will relieve restrictions
on the movement of these fruits from Hawaii while continuing to provide
protection against the spread of injurious plant pests from Hawaii to
other parts of the United States.
EFFECTIVE DATE: November 30, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Staff
Officer, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River
Road Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian Fruits and Vegetables regulations, contained in 7 CFR
318.13 through 318.13-17 (referred to below as the regulations),
govern, among other things, the interstate movement of fruits and
vegetables from Hawaii. The regulations are necessary to prevent the
spread of dangerous plant diseases and pests that occur in Hawaii,
including the Mediterranean fruit fly (Ceratitis capitata), the melon
fly (Bactrocera cucurbitae), the Oriental fruit fly (Bactrocera
dorsalis), and the Malaysian fruit fly (Bactrocera latifrons). These
types of fruit flies are collectively referred to in this document as
``fruit flies.''
On June 10, 1998, we published in the Federal Register (63 FR
31675-31678, Docket No. 97-005-1) a proposal to allow abiu (Pouteria
caimito), atemoya (Annona squamosa x A. cherimola), longan (Dimocarpus
longan), rambutan (Nephelium lappaceum), and sapodilla (Manilkara
zapota) to be moved interstate from Hawaii if, among other things, the
fruits undergo irradiation treatment in accordance with Sec. 318.13-4f
of the regulations. We also proposed to allow durian (Durio zibethinus)
to be moved interstate from Hawaii if it is inspected and found free of
plant pests. In addition, we proposed to allow green bananas (Musa
spp.) of the cultivars ``Williams,'' ``Valery,'' and dwarf
[[Page 65646]]
``Brazilian'' to be moved interstate from Hawaii under certain
conditions.
We solicited comments concerning our proposal for 60 days ending
August 10, 1998. We received five comments by that date. They were from
representatives of industry and State governments. One commenter
supported the proposal rule in its entirety. The remaining four
commenters expressed concerns about portions of the proposed rule.
Their concerns are discussed below.
Comment: The proposed rule should require each irradiation facility
to have in place a set of standard operating procedures before the
facility is approved by the Animal and Plant Health Inspection Service
(APHIS).
Response: In order to be approved by APHIS, each irradiation
facility must meet certain operating standards and enter into a
compliance agreement with APHIS, in accordance with Sec. 318.13-
4f(b)(2)(iii). Therefore, no changes to the proposal appear necessary
in response to this comment.
Comment: Treatment record requirements should be clarified for
Hawaiian fruits treated by irradiation on the mainland United States.
Section 318.13-4f(b)(4)(i)(C) specifies that fruits irradiated in
Hawaii for subsequent interstate movement are required to be labeled
with treatment lot numbers, packing and treatment facility
identification and location, and dates of packing and treatment. It is
not clear, however, whether Hawaiian fruits treated by irradiation on
the mainland United States are subject to comparable labeling
requirements. In order to maintain the identity of a shipment treated
at any location and to expedite inspections at the port of destination,
all irradiated Hawaiian fruits, whether treated in Hawaii or on the
mainland United States, should be subject to these same labeling
requirements. In addition, all irradiated Hawaiian fruit should be
accompanied by a document or labeling that provides information on the
absorbed minimum dose of irradiation.
Response: In Hawaii, irradiated shipments could, if treated or
handled improperly, be reinfested with fruit flies. Therefore, we
established certain labeling requirements for shipments of fruits and
vegetables irradiated in Hawaii to aid in traceback if those shipments
were found to contain fruit flies upon arrival on the mainland United
States. Since the mainland United States does not have established
populations of fruit flies, and irradiation facilities will be located
in non-fruit fly-supporting areas of the mainland, the risk of
reinfestation of shipments irradiated on the mainland United States is,
at best, negligible. Therefore, we do not believe that it is necessary
to require similar labeling of shipments irradiated on the mainland
United States.
Further, it is standard procedure for irradiation facilities to
supply the person who commissions the irradiation of fruit or
vegetables with a document stating the minimum absorbed dose of the
irradiation treatment. Therefore, we do not feel that it is necessary
to label boxes with that information.
Comment: APHIS should require that irradiated fruit be labeled so
that consumers can easily differentiate irradiated fruit from
organically grown fruit.
Response: The labeling of irradiated fruit falls under the
jurisdiction of the Food and Drug Administration (FDA). Under the FDA's
regulations at 21 CFR 179.26(c), concerning irradiated foods not in
package form (e.g., loose fresh fruits and vegetables), an irradiation
logo and phrase (e.g., ``Treated with radiation'' or ``Treated by
irradiation'') must be displayed to the purchaser of the food either by
labeling of the bulk container plainly in view; a counter sign, card,
or other appropriate device bearing the required information; or
individual labels on each item of food. In any case, the information
must be prominently and conspicuously displayed to purchasers.
Therefore, no changes to the proposal appear necessary in response to
this comment.
Comment: APHIS should reconsider its proposal to allow durian and
green bananas to move interstate to the mainland United States without
a quarantine treatment. Durian and green bananas both have the
potential to carry pink hibiscus mealybug (Maconellicoccus hirsutus)
(PHM). PHM occurs in Hawaii, attacks more than 200 different plants,
and is considered to be a serious threat to American agriculture.
Inspection is not sufficient to mitigate the risk of the introduction
of PHM on durian and green bananas from Hawaii.
Response: We consider PHM a serious plant pest, but we disagree
that inspection is not sufficient to mitigate the risk of the
introduction of PHM on durian and green bananas from Hawaii. PHM is
easily detectable by inspection because when fruits are infested with
PHM, they are covered, to at least some degree, with the white waxy
coating of the mealybug, which is clearly visible on fruits and
vegetables. We successfully inspect a variety of untreated commodities,
including avocados, bananas, citrus fruits, peppers, and tomatoes,
imported into the United States from many different countries for the
presence of PHM. Therefore, we are making no changes to the proposal in
response to this comment.
Comment: This proposal should be postponed until it is determined
whether Hawaii will build an irradiation facility. If Hawaii does not
build its own irradiation facility, there will be no irradiated
Hawaiian fruit to move interstate under the provisions outlined in the
proposal.
Response: This rule allows abiu, atemoya, longan, rambutan, and
sapodilla to be moved interstate from Hawaii if the fruit undergoes
irradiation treatment at an approved facility in Hawaii or in non-fruit
fly supporting areas of the mainland United States. Therefore, the
presence of an irradiation facility in Hawaii is not necessary to
enable Hawaiian fruits to move interstate under this rule.
Comment: It is unclear from the proposal whether untreated abiu,
atemoya, longan, rambutan, and sapodilla moving from Hawaii to the
mainland United States for irradiation treatment may move into or
through all States on the mainland or just certain States. Allowable
ports of entry should be identified in advance and should be consistent
with those ports considered safe for the entry of other untreated fruit
fly host shipments intended for cold treatment upon arrival.
Response: In accordance with Sec. 318.13-4f(b)(1), all untreated
fruits and vegetables moving from Hawaii to the mainland United States
for irradiation treatment may not move into or through the States of
Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana,
Mississippi, Nevada, New Mexico, North Carolina, South Carolina,
Tennessee, Texas, or Virginia, except that certain movements are
allowed through Dallas/Fort Worth, TX. Dallas/Fort Worth is authorized
as an approved stop for air cargo, and as a transloading location for
shipments that arrive by air and then are loaded into trucks for
overland movement from Dallas/Fort Worth into an authorized State by
the shortest route. We are considering allowing untreated fruits and
vegetables moving from Hawaii to the mainland United States for
irradiation treatment to move to other locations on the mainland United
States where cold treatment of fruit flies has been approved. If it
appears that movement to these additional locations would be
appropriate, we will propose that change in the Federal Register.
Comment: Citrus should be added to the list of fruit approved for
movement interstate from Hawaii with irradiation treatment.
[[Page 65647]]
Response: We are currently reviewing data to determine the pest
risk associated with the movement of irradiated citrus from Hawaii to
the mainland United States. If, after review, it appears that citrus
may safely move interstate from Hawaii with irradiation treatment, we
will propose that change in the Federal Register.
Comment: Because green bananas are not a fruit fly host, pest-proof
containers or cartons should not be required for the interstate
movement of green bananas from Hawaii.
Response: Because research shows that harvested bananas gradually
become susceptible to fruit fly infestation, we believe that it is
necessary to require a measure of protection against possible
infestation. However, we agree that producers should have flexibility
in the way that they meet this requirement. Therefore, in this final
rule, Sec. 318.13-4i(d) will read: ``The bananas must be safeguarded
from fruit fly infestation from the time that they are packaged for
shipment until they reach the port of arrival on the mainland United
States.'' This will allow producers to use either pest-proof shipping
cartons, pest-proof shipping containers (e.g., air or sea containers),
or other means, such as loading the bananas into a cold storage
facility or packing the bananas in a carton fully covered by plastic or
netting, to ensure that harvested bananas are protected from fruit fly
infestation.
Comment: Green bananas of the cultivars `Grand Nain' and standard
`Brazilian' should be allowed to move interstate from Hawaii to the
mainland United States under the same provisions outlined in the
proposal for certain other cultivars of green bananas.
Response: We agree. At the time that we were developing our
proposal, it was our understanding that ``Grand Nain'' and standard
``Brazilian'' bananas were either not grown commercially in Hawaii or
were grown in such limited quantities in Hawaii that there would be no
interest in moving them interstate to the mainland United States.
Therefore, we omitted these cultivars of green bananas from our
proposal. This comment, however, makes it clear that there is interest
in moving these cultivars of green bananas to the mainland United
States. Research conducted concurrently with research on the other
cultivars of green bananas proposed for interstate movement from Hawaii
indicates that green bananas of the cultivars ``Grand Nain'' and
standard ``Brazilian'' can be safely moved interstate under the same
conditions outlined in the proposal for green bananas of the cultivars
``Williams,'' ``Valery,'' and dwarf ``Brazilian.'' Therefore, in this
final rule, Sec. 318.13-4i includes green bananas of the cultivars
``Grand Nain'' and standard ``Brazilian.''
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with
changes discussed in this document.
Effective Date
This is a substantive rule that relieves restrictions and, pursuant
to the provisions of 5 U.S.C. 553, may be made effective less than 30
days after publication in the Federal Register. Immediate
implementation of this rule is necessary to provide relief to those
persons who are adversely affected by restrictions we no longer find
warranted. Therefore, the Administrator of the Animal and Plant Health
Inspection Service has determined that this rule should be effective
upon publication in the Federal Register.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
We are allowing abiu, atemoya, longan, rambutan, and sapodilla to
be moved interstate from Hawaii if the fruit undergoes irradiation
treatment at an approved facility. Treatment may be conducted either in
Hawaii or in non-fruit fly supporting areas of the mainland United
States. The fruit will also have to meet certain additional
requirements, including packaging requirements. We are also allowing
durian to be moved interstate from Hawaii if the durian is inspected
and found free of certain plant pests. In addition, we are allowing
certain varieties of green bananas to move interstate from Hawaii under
certain conditions intended to ensure the bananas' freedom from plant
pests, including fruit flies.
The mainland United States has very limited, if any, quantities of
abiu, atemoya, durian, longan, rambutan, and sapodilla for sale to
consumers. Three of these specialty fruits--abiu, durian, and
rambutan--are not grown commercially on the mainland United States;
atemoya, longan, and sapodilla are grown commercially on the mainland
United States but only in relatively small quantities. All mainland
production of atemoya, longan, and sapodilla occurs in the State of
Florida. It is estimated that Florida's annual production of atemoya
amounts to approximately 80,000 pounds; of longan, approximately 2
million pounds; of sapodilla, approximately 350,000 pounds.
Unlike the other fruits listed in this document, bananas are
generally not considered to be specialty fruits. Also unlike the other
fruits, the mainland United States has abundant quantities of bananas,
including green bananas, for sale to consumers. However, virtually all
bananas sold in the United States are imported. Less than 1 percent of
the U.S. supply of bananas is produced domestically, and only a
minuscule portion of domestic production occurs on the mainland United
States, in Florida and California. In 1992, Florida produced 158,662
pounds of bananas. Production data for California is not available, but
production in California is estimated to be much less than in Florida,
given that in 1992 there were only 2 banana-producing farms in
California and 67 in Florida. Hawaii accounted for the remainder of
domestic banana production in 1992, with a total of 12,570,831 pounds.
Based on data for 1992, therefore, Hawaii accounts for nearly all of
the banana production in the United States.
It is estimated that there are fewer than 100 farms growing
tropical specialty fruits in Florida, and virtually all of these farms
are located in the southern part of the State. Information is not
available on the gross receipts for each of these farms, but since the
farms are generally less than 5 acres in size, it is reasonable to
assume that most are small entities under Small Business Administration
(SBA) standards. We do not expect the interstate movement of abiu,
atemoya, durian, longan, rambutan, and sapodilla to affect these fruit
producers for several reasons. First, as discussed earlier, three of
the six specialty fruits are not grown commercially on the mainland
United States. Second, the demand for the remaining three specialty
fruits that are produced in Florida is strong, particularly among Asian
Americans on the mainland United States. Florida currently has no
difficulty selling all of the atemoya, longan, and sapodilla that it
produces. Third, Hawaiian fruit will likely be marketed primarily in
western States on the mainland while Florida's fruits are sold
primarily in eastern States. Therefore, Hawaii's specialty fruits will
likely be in little direct competition with Florida's specialty fruits.
As discussed above, in 1992, 67 farms in Florida and 2 farms in
California produced bananas. Like the specialty fruit growers, most
banana-producing
[[Page 65648]]
farms in Florida and California are assumed to be small entities under
SBA standards. However, any interstate movement of green bananas from
Hawaii should have little or no impact on banana producers on the
mainland United States. This is due to the relatively small volume of
bananas that may be moved interstate from Hawaii. Even in the unlikely
event that Hawaii moved all of its production interstate, Hawaii's
bananas would still account for less than 1 percent of the mainland
U.S. supply.
We expect that fruit growers in Hawaii will benefit from the
interstate movement of abiu, atemoya, durian, green bananas, longan,
rambutan, and sapodilla from Hawaii because these growers will have new
outlets for their products. In 1995, the State of Hawaii produced
1,250,800 pounds of specialty tropical fruit (of all varieties) with a
value of $987,100. Three varieties of fruit--carambola, litchi, and
specialty pineapple--accounted for 74 percent of Hawaii's 1995
production. The remaining 26 percent, or approximately 325,000 pounds
of fruit, consisted of all other varieties of fruit grown in Hawaii,
including the six specialty fruits named in this document. Also, in
1992, Hawaii produced 12,570,831 pounds of bananas, with a value of
$5.2 million.
In 1995, 115 farms in the State of Hawaii grew at least one variety
of specialty tropical fruit. However, information on which of those
farms grew one or more of the six specialty fruits named in this
document is not available. Information is also not available on the
gross receipts for each of the 115 farms. In all likelihood, most of
the 115 farms are small entities because data for all 2,019 Hawaiian
farms whose revenues are derived primarily from the sales of fruit and/
or tree nuts show that 99 percent are small entities under SBA
standards.
The production of tropical specialty fruit is growing rapidly in
Hawaii. The State's 1995 production level represents an increase of
approximately 126 percent, or 698,100 pounds, over the 1994 level of
552,700 pounds. Carambola and specialty pineapple accounted for more
than 80 percent of the increase. The increase in production of tropical
specialty fruit is expected to continue, as a response to the decline
in the sugar industry and to the recent availability of prime
agricultural lands in the State of Hawaii. In 1995, Hawaiian growers
devoted 415 acres to tropical specialty fruits, 6 percent more acreage
than in 1994. It is estimated that by the year 2000, Hawaii will be
producing 2.6 million pounds of tropical specialty fruits annually,
more than double the 1995 level. If Hawaiian growers move 200,000
pounds of each of the six specialty fruits named in this document
interstate annually, using the 1995 average per pound value of all
tropical specialty fruits produced in Hawaii (on all 115 farms) of
$.79, the collective annual sales of the fruit would generate $948,000.
This amounts to $8,243 per farm when divided equally among the 115
farms growing specialty tropical fruit.
In 1992, bananas were produced on 700 farms in Hawaii, and a total
of 1,506 acres were devoted to banana production on those farms.
Although data for individual farms in Hawaii that produce bananas is
not available, most are probably small entities by SBA standards
because, as mentioned earlier, data for all 2,019 Hawaiian farms whose
revenues are derived primarily from the sales of fruit and/or tree nuts
show that 99 percent are small entities under SBA standards. However,
we do not expect this rule to have a significant impact on Hawaiian
banana producers. Even if those producers were to move interstate the
equivalent of half of the 1992 banana production (6.3 million pounds),
the combined revenues from such sales would amount to $2.6 million
dollars, an average of only $3,681 per farm.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this final rule have been
submitted for approval to the Office of Management and Budget (OMB).
When OMB notifies us of its decision, we will publish a document in the
Federal Register providing notice of the assigned OMB control number
or, if approval is denied, providing notice of what action we plan to
take.
Lists of Subjects in 7 CFR Part 318
Cotton, Cottonseeds, Fruits, Guam, Hawaii, Incorporation by
reference, Plant diseases and pests, Puerto Rico, Quarantine,
Transportation, Vegetables, Virgin Islands.
Accordingly, we are amending 7 CFR part 318 as follows:
PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES
1. The authority citation for part 318 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,
and 167; 7 CFR 2.22, 2.80, and 371.2(c).
Sec. 318.13-2 [Amended]
2. In Sec. 318.13-2, paragraph (b), the list of fruits and
vegetables is amended by adding, in alphabetical order, ``Durian (Durio
zibethinus).''
3. In Sec. 318.13-4f, paragraphs (a) and (b)(4)(iii) are revised to
read as follows:
Sec. 318.13-4f Administrative instructions prescribing methods for
irradiation treatment of certain fruits and vegetables from Hawaii.
(a) Approved irradiation treatment. Irradiation, carried out in
accordance with the provisions of this section, is approved as a
treatment for the following fruits and vegetables: Abiu, atemoya,
carambola, litchi, longan, papaya, rambutan, and sapodilla.
(b) * * *
(4) * * *
(iii) Litchi and longan from Hawaii may not be moved interstate
into Florida. All cartons in which litchi or longan are packed must be
stamped ``Not for importation into or distribution in FL.''
* * * * *
4. A new Sec. 318.13-4i is added to read as follows:
Sec. 318.13-4i Administrative instructions; conditions governing the
movement of green bananas from Hawaii.
Green bananas (Musa spp.) of the cultivars ``Williams,''
``Valery,'' ``Grand Nain,'' and standard and dwarf ``Brazilian'' may be
moved interstate from Hawaii with a certificate issued in accordance
with Secs. 318.13-3 and 318.13-4 of this subpart if the bananas meet
the following conditions:
(a) The bananas must be picked while green and packed for shipment
within 24 hours after harvest. If the green bananas will be stored
overnight during
[[Page 65649]]
that 24-hour period, they must be stored in a facility that prevents
access by fruit flies;
(b) No bananas from bunches containing prematurely ripe fingers
(i.e., individual yellow bananas in a cluster of otherwise green
bananas) may be harvested or packed for shipment;
(c) The bananas must be inspected by an inspector and found free of
plant pests as well as any of the following defects: prematurely ripe
fingers, fused fingers, or exposed flesh (not including fresh cuts made
during the packing process); and
(d) The bananas must be safeguarded from fruit fly infestation from
the time that they are packaged for shipment until they reach the port
of arrival on the mainland United States.
Done in Washington, DC, this 19th day of November 1998.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-31714 Filed 11-27-98; 8:45 am]
BILLING CODE 3410-34-P