[Federal Register Volume 63, Number 111 (Wednesday, June 10, 1998)]
[Proposed Rules]
[Pages 31675-31678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15403]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 63, No. 111 / Wednesday, June 10, 1998 / 
Proposed Rules

[[Page 31675]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 318

[Docket No. 97-005-1]


Fruit From Hawaii

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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

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

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 97-005-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 97-005-1. Comments 
received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to 
inspect comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Staff 
Officer, Phytosanitary Issues Management Team (PIMT), PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1236, (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

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

Abiu, Atemoya, Longan, Rambutan, and Sapodilla

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

[[Page 31676]]

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

Executive Order 12866 and Regulatory Flexibility Act

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

[[Page 31677]]

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

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

[[Page 31678]]

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

List of Subjects in 7 CFR Part 318

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

PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

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

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


Sec. 318.13-2  [Amended]

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


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

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


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

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

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