[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18690-18695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10461]



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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. 61, No. 83 / Monday, April 29, 1996 / 
Proposed Rules

[[Page 18690]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 95-068-1]


Importation of Fruits and Vegetables

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to allow, under certain conditions, the cold 
treatment of imported fruit upon arrival at the ports of Seattle, WA, 
Atlanta, GA, and Gulfport, MS. We have determined that there are 
biological barriers at these ports that, along with certain safeguards, 
would prevent the introduction of fruit flies and other insect pests 
into the United States in the unlikely event that they escape from 
shipments of fruit before undergoing cold treatment. We are also 
proposing to require that cold treatment facilities at the port of 
Wilmington, NC, remain locked during non-working hours. These actions 
would facilitate the importation of fruit requiring cold treatment 
while continuing to provide protection against the introduction of 
fruit flies and other insect pests into the United States.

DATES: Consideration will be given only to comments received on or 
before June 28, 1996.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 95-068-1, 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. 95-068-1. 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 
Operations Officer, Port Operations, PPQ, APHIS, 4700 River Road Unit 
139, Riverdale, MD 20737-1236, (301) 734-8891.

SUPPLEMENTARY INFORMATION:

Background

    The Fruits and Vegetables regulations, contained in 7 CFR 319.56 
through 319.56-8 (referred to below as ``the regulations''), prohibit 
or restrict the importation of fruits and vegetables to prevent the 
introduction and dissemination of injurious insects, including fruit 
flies, that are new to or not widely distributed in the United States. 
The Animal and Plant Health Inspection Service (APHIS) of the U.S. 
Department of Agriculture administers these regulations.
    Under the regulations, APHIS allows certain fruits to be imported 
into the United States if they undergo sustained refrigeration (cold 
treatment) sufficient to kill certain insect pests. Cold treatment 
temperature and time requirements vary according to the type of fruit 
and the pests involved. Detailed cold treatment procedures may be found 
in the Plant Protection and Quarantine (PPQ) Treatment Manual, which is 
incorporated by reference into the regulations at 7 CFR 300.1.
    Most imported fruit that requires cold treatment undergoes cold 
treatment in transit to the United States. However, APHIS also allows 
imported fruit to undergo cold treatment at an approved cold treatment 
facility in either the country of origin or after arrival in the United 
States at certain ports designated by APHIS in Sec. 319.56-2d(b)(1) of 
the regulations.
    Currently, cold treatment in the United States is limited to the 
following ports: the port of Wilmington, NC; Atlantic ports north of, 
and including, Baltimore, MD; ports on the Great Lakes and St. Lawrence 
Seaway; Canadian border ports on the North Dakota border and east of 
North Dakota; and, for air shipments, Washington, DC, at Baltimore-
Washington International and Dulles International airports.
    Imported fruit may undergo cold treatment at the listed ports other 
than Wilmington, NC, because biological barriers, including climatic 
conditions, exist to prevent the introduction and establishment of 
fruit flies and other insect pests that could escape from shipments of 
imported fruit after arrival in the United States. Imported fruit may 
also undergo cold treatment at the port of Wilmington, NC, because 
APHIS has imposed special conditions regarding cold treatment to 
mitigate the risk of the introduction of fruit flies and other insect 
pests into the United States (see Sec. 319.56-2d(b)(5)(iv)).
    Recently, we received formal requests from the Taiwanese 
Government, the City of Atlanta Airport Authority, and the Mississippi 
State Port Authority to authorize the ports of Seattle, WA, Atlanta, 
GA, and Gulfport, MS, respectively, as approved locations for cold 
treatment of imported fruit.

Previously Published Notices and Regulations

    On November 12, 1993, in response to earlier petitions from 
individuals at the ports of Wilmington, NC, and Gulfport, MS, we 
published in the Federal Register (58 FR 59953, Docket No. 93-121-1) an 
advance notice of proposed rulemaking requesting public comment on 
whether we should allow cold treatment at ports in the Southern United 
States and in California.
    We solicited comments concerning this notice for a 45-day period 
ending December 27, 1993. During that period, we received four 
comments, three from State governments and one from a grower 
organization. Two commenters opposed allowing cold treatment at ports 
in the Southern United States and California, arguing that allowing 
such treatments would place California and Florida citrus crops at too 
great a risk of fruit fly infestation. Another commenter requested that 
we perform a detailed pest risk analysis before deciding whether to 
allow cold treatment at southern and California ports. Another 
commenter supported cold treatment at the port of Wilmington, NC.
    We subsequently published a proposed rule in the Federal Register 
on May 13, 1994 (59 FR 24968-24971, Docket No. 93-121-2) in which we 
proposed to allow imported fruit to be cold treated at the port of 
Wilmington, NC, after arrival in the United States. At that time, we 
decided to give further consideration to allowing cold treatment at 
other ports in the Southern United States and California. In a final 
rule published in the Federal Register on August 10, 1994 (59 FR 40794-
40797,

[[Page 18691]]

Docket No 93-121-3), we approved cold treatment, under certain 
conditions, at the port of Wilmington, NC.

Proposal of Additional Ports

    After performing extensive risk analyses, we are proposing to add 
the ports of Seattle, WA, Atlanta, GA, and Gulfport, MS, to the list of 
ports in Sec. 319.56-2d that are authorized as approved locations for 
cold treatment of imported fruit. This proposal to allow cold treatment 
of fruit under certain conditions at the ports of Seattle, WA, Atlanta, 
GA, and Gulfport, MS, is based, in part, on a document prepared by 
APHIS assessing the pest risks associated with allowing cold treatment 
of tropical fruit fly host materials at certain United States ports. 
The risk mitigation measures discussed in the document are included in 
this proposal as requirements for the ports of Seattle, WA, Atlanta, 
GA, and Gulfport, MS. (Copies of this document may be obtained by 
writing to the individual listed under FOR FURTHER INFORMATION 
CONTACT.) We have determined that in the areas of these ports proposed 
for cold treatment, there are biological barriers that, along with 
certain safeguards, would prevent the introduction and establishment of 
fruit flies and other insect pests in the unlikely event that they 
escape from shipments of fruit before undergoing cold treatment.

Risk Groups

    Plant Protection and Quarantine (PPQ), APHIS, has established risk 
groups for many ports in the United States. These risk groups 
characterize the relative risk, without consideration for mitigating 
factors, associated with the movement of tropical fruit fly host 
material for cold treatment at these ports in the United States. The 
ports have been assigned to one of five risk groups based on a number 
of criteria, including the individual port's latitude, microclimate, 
immediate host availability, and past fruit fly infestations. The risk 
groups are assigned numbers I through V; this number scale represents 
an ascending level of risk based on the criteria listed above. Group I 
ports consist of East Coast ports north of, and including, Baltimore, 
MD. Group II ports consist of the ports of Wilmington, NC, Seattle, WA, 
Portland, OR, Atlanta, GA, and Norfolk, VA. Group III ports consist of 
the ports of Charleston, SC, Savannah, GA, Port Arthur, TX, and 
Galveston/Houston, TX. Group IV ports consist of the ports of Gulfport, 
MS, Mobile, AL, New Orleans, LA, Corpus Christi, TX, and Pensacola, FL. 
Group V ports consist of the ports of San Diego, CA, San Pedro/Long 
Beach, CA, San Francisco, CA, Oakland, CA, Tampa, FL, Miami, FL, West 
Palm/Ft. Lauderdale, FL, Cape Canaveral, FL, Jacksonville, FL, Ft. 
Meyers, FL, Ft. Pierce, FL, Brownsville, TX, and all Hawaiian ports.
    The general requirements for cold treatment found in Sec. 319.56-2d 
are designed to mitigate the risk of infestation due to fruit fly 
escape from shipments intended for cold treatment at Group I ports. 
These requirements include delivering, under the supervision of an 
inspector of PPQ, shipments of fruit that require cold treatment to an 
approved cold storage warehouse where the shipments will be cold 
treated; precooling and refrigerating the shipments of fruit intended 
for cold treatment promptly upon arrival at the cold treatment 
facility; allowing shipments of fruit that require cold treatment to 
leave U.S. Customs custody only under a redelivery bond for cold 
treatment; and allowing shipments of fruit that require cold treatment 
final release from the U.S. Collector of Customs only after official 
notification has been received by the Customs officer that the required 
cold treatment has been completed.
    For shipments of fruit arriving for cold treatment at the port of 
Wilmington, NC, a Group II port, the regulations at Sec. 319.56-
2d(b)(5)(iv) also require that bulk shipments of fruit must arrive in 
fly-proof packaging that prevents the escape of adult, larval, or pupal 
fruit flies; bulk and containerized shipments of fruit must be cold 
treated within the area over which the Bureau of Customs is assigned 
the authority to accept entries of merchandise, to collect duties, and 
to enforce the various provisions of the customs and navigation laws in 
force; and advance reservations for cold treatment must be made prior 
to the departure of a shipment from its port of origin.
    Each of the ports proposed as an approved location for cold 
treatment in this document, the ports of Seattle, WA, Atlanta, GA, and 
Gulfport, MS, has been assigned to a risk group other than Group I; 
consequently, additional mitigating factors need to be put in place 
before cold treatment can occur at any of these ports.

Proposal of Special Conditions for the Ports of Seattle, WA, Atlanta, 
GA, and Gulfport, MS

    We are proposing to impose additional special conditions regarding 
cold treatment at each of the ports proposed as an approved location 
for cold treatment that mitigate the risk of the introduction and 
establishment of fruit flies and other insect pests. The special 
conditions that would be assigned to each port are listed below by 
port.

Special Conditions for the Maritime Port of Seattle, WA

    The maritime port of Seattle has biological barriers to fruit fly 
introduction and establishment in that the port is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping 
from a shipment of fruit intended for cold treatment would find 
adequate host material for propagation. However, the maritime port of 
Seattle, WA, belongs to the Group II list of ports because the area 
surrounding this port contains a small variety of fruit-fly host 
material and has a longer growing season than Group I ports. Therefore, 
in addition to the requirements in Sec. 319.56-2d (b)(5)(i) through 
(b)(5)(iii) of the regulations concerning cold treatment, the following 
additional requirements would apply to cold treatment conducted at the 
maritime port of Seattle, WA:
    1. Bulk shipments (those shipments which are stowed and unloaded by 
the case or bin) of fruit must arrive in fruit fly-proof packaging that 
prevents the escape of adult, larval, or pupal fruit flies.
    This condition would ensure that shipments that arrive at the 
maritime port of Seattle, WA, in cases or bins would not be exposed in 
such a manner as to allow fruit flies or other insect pests to escape 
from the shipment.
    2. Bulk and containerized shipments of fruit must be cold treated 
within the area over which the Bureau of Customs is assigned the 
authority to accept entries of merchandise, to collect duties, and to 
enforce the various provisions of the customs and navigation laws in 
force.
    This condition would restrict the movement of untreated shipments 
of fruit intended for cold treatment, further minimizing the risk that 
any fruit flies in the shipments would come into contact with host 
material that may be in the area.
    3. Advance reservations for cold treatment space must be made prior 
to the departure of a shipment from its port of origin.
    This condition would ensure that untreated shipments of fruit 
arriving at the port would not have to wait for an extended period of 
time for cold treatment. Ensuring the expeditious cold treatment of the 
fruit would minimize the risk of fruit flies maturing in deteriorating 
fruit.

[[Page 18692]]

    4. The cold treatment facility must remained locked during non-
working hours.
    This condition would help ensure that unauthorized persons do not 
have access to untreated fruit and, therefore, cannot remove untreated 
fruit from the cold treatment facility.
    We believe that the biological barriers and these additional 
conditions established for cold treatment at the maritime port of 
Seattle, WA, would be adequate to prevent the introduction and 
establishment of fruit flies and other insect pests.

Special Conditions for the Airports of Atlanta, GA, and Seattle, WA

    The airports of Atlanta, GA, and Seattle, WA, each have biological 
barriers to fruit fly introduction and establishment in that neither 
port is in a citrus-producing area. This reduces the likelihood that a 
fruit fly escaping from a shipment of fruit intended for cold treatment 
would find adequate host material for propagation. However, both the 
airports of Atlanta, GA, and Seattle, WA, belong to the Group II list 
of ports because the areas surrounding these airports contain a small 
variety of fruit-fly host material and have longer growing seasons than 
Group I ports. Additionally, although fruit that travels to the United 
States by ship for cold treatment is regularly chilled during transit, 
fruit imported into the United States by aircraft for cold treatment is 
not. Therefore, the mitigation measures for the Group II airports of 
Atlanta, GA, and Seattle, WA, would be more extensive than the 
mitigation measures for Group II maritime ports. As such, in addition 
to the requirements in Sec. 319.56-2d(b)(5)(i) through (b)(5)(iii) of 
the regulations concerning cold treatment, the following additional 
requirements would apply to cold treatment conducted at the airports of 
Atlanta, GA, and Seattle, WA:
    1. Bulk and containerized shipments of fruit must arrive in fruit 
fly-proof packaging that prevents the escape of adult, larval, or pupal 
fruit flies.
    This condition would ensure that all shipments, including those 
that that arrive at these airports in cases or bins, would not be 
exposed in such a manner as to allow fruit flies or other insect pests 
to escape from the shipment.
    2. Bulk and containerized shipments of fruit must be cold treated 
within the area over which the Bureau of Customs is assigned the 
authority to accept entries of merchandise, to collect duties, and to 
enforce the various provisions of the customs and navigation laws in 
force.
    This condition would restrict the movement of untreated shipments 
of fruit intended for cold treatment, further minimizing the risk that 
any fruit flies in the shipments would come into contact with host 
material that may be in the area.
    3. The cold treatment facility and PPQ must agree in advance on the 
route by which shipments are allowed to move between the aircraft on 
which they arrived at the port and the cold treatment facility. The 
movement of shipments from aircraft to cold treatment facility would 
not be allowed until an acceptable route has been agreed upon.
    In most instances, the route would be determined by establishing 
the shortest route between the aircraft and the cold treatment facility 
that does not include an area that contains host material for fruit 
flies during the time of year that the region experiences its most 
abundant amount of host material for fruit flies. Then, that route 
would be used throughout the year to convey shipments from aircraft to 
cold treatment facility. This predetermined route would reduce the 
amount of time that a shipment would have to wait before undergoing 
cold treatment and would reduce the risk that any fruit flies in the 
shipments would come into contact with host material en route to cold 
treatment.
    4. Advance reservations for cold treatment space must be made prior 
to the departure of a shipment from its port of origin.
    This condition would ensure that untreated shipments of fruit 
arriving at the port would not have to wait for an extended period of 
time for cold treatment. Ensuring the expeditious cold treatment of the 
fruit would minimize the risk of fruit flies maturing in deteriorating 
fruit.
    5. The cold treatment facility must remained locked during non-
working hours.
    This condition would help ensure that unauthorized persons do not 
have access to untreated fruit and, therefore, cannot remove untreated 
fruit from the cold treatment facility.
    6. Blacklight or sticky paper must be used within the cold 
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square 
miles surrounding the cold treatment facility.
    This condition would act as a general safeguard. We propose this 
condition as an extra layer of defense that would trap any fruit flies 
within the facility or within the facility's environs, in the unlikely 
event that a fruit fly manages to survive past the stage of pupation in 
the cold treatment facility.
    7. The cold treatment facility must have contingency plans, 
approved by the Deputy Administrator of PPQ, for handling fruit, 
including the ability to destroy or dispose of fruit safely.
    This condition would ensure that, in the event that a shipment 
cannot be cold treated promptly or properly, the contents of the 
shipment could be safely treated by alternative means, destroyed, or 
disposed of so that fruit flies and other insect pests would not have 
the opportunity to escape. Examples of adequate contingency plans would 
include the ability to incinerate fruit, to bury fruit, or to re-export 
fruit.
    We believe that the biological barriers and these additional 
conditions established for cold treatment at the airports of Atlanta, 
GA, and Seattle, WA, would be adequate to prevent the introduction and 
establishment of fruit flies and other plant pests.

Special Conditions for the Port of Gulfport, MS

    The maritime port of Gulfport, MS, has biological barriers to fruit 
fly introduction and establishment in that it is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping 
from a shipment of fruit intended for cold treatment would find 
adequate host material for propagation. However, the port of Gulfport 
belongs to the Group IV list of ports because the area surrounding this 
port, among other things, contains a wider variety and greater quantity 
of fruit-fly host material than Group I, II, or III ports and has a 
lengthy growing season due to its southern location. Therefore, in 
addition to the requirements in Sec. 319.56-2d(b)(5)(i) through 
(b)(5)(iii) of the regulations concerning cold treatment, the following 
additional requirements would apply to cold treatment conducted at the 
maritime port of Gulfport, MS:
    1. All fruit entering the port for cold treatment must move in 
maritime containers. No bulk shipments (those shipments which are 
stowed and unloaded by the case or bin) would be allowed at the port of 
Gulfport, MS.
    This condition would ensure that imported fruit arriving at the 
port of Gulfport, MS, for cold treatment would not be exposed to the 
outdoors. The shipping container would insulate the fruit, thereby 
helping to keep the fruit chilled during unloading, would prevent 
leakage of the shipment, and would serve as a barrier to fruit fly 
escape from shipments of untreated fruit.

[[Page 18693]]

    2. Within the container, the fruit intended for cold treatment must 
be enclosed in fruit fly-proof packaging that prevents the escape of 
adult, larval, or pupal fruit flies.
    This condition would ensure that containerized shipments would be 
packaged in such a manner as to prevent fruit flies or other insect 
pests from escaping from the shipment when the container is opened. 
This condition would provide an extra barrier to fruit fly escape from 
a shipment of untreated fruit.
    3. Containerized shipments of fruit arriving at the port must be 
cold treated within the area over which the Bureau of Customs is 
assigned the authority to accept entries of merchandise, to collect 
duties, and to enforce the various provisions of the customs and 
navigation laws in force.
    This condition would restrict the movement of untreated shipments 
of fruit intended for cold treatment, further minimizing the risk that 
any fruit flies in the shipments would come into contact with host 
material that may be in the area.
    4. The cold treatment facility and PPQ must agree in advance on the 
route by which shipments are allowed to move between the vessel on 
which they arrived at the port and the cold treatment facility. The 
movement of shipments from vessel to cold treatment facility would not 
be allowed until an acceptable route has been agreed upon.
    In most instances, the route would be determined by establishing 
the shortest route between the vessel and the cold treatment facility 
that does not include an area that contains host material for fruit 
flies during the time of year that the region experiences its most 
abundant amount of host material for fruit flies. Then, that route 
would be used throughout the year to convey shipments from vessel to 
cold treatment facility. This predetermined route would reduce the 
amount of time that a shipment would have to wait before undergoing 
cold treatment and would reduce the risk that any fruit flies in the 
shipments would come into contact with host material en route to cold 
treatment.
    5. Advance reservations for cold treatment space must be made prior 
to the departure of a shipment from its port of origin.
    This condition would ensure that untreated shipments of fruit 
arriving at the port would not have to wait for an extended period of 
time for cold treatment. Ensuring the expeditious cold treatment of the 
fruit would minimize the risk of fruit flies maturing in deteriorating 
fruit.
    6. Devanning, the unloading of fruit from containers into the cold 
treatment facility, must adhere to the following requirements: (1) All 
containers must be unloaded within the cold treatment facility; and (2) 
untreated fruit may not be exposed to the outdoors under any 
circumstances.
    Because of the southern location of the port of Gulfport, MS, we 
believe that this condition would be a necessary mitigating factor at 
this port. This condition would eliminate the possibility of untreated 
fruit being unloaded and waiting for cold treatment outside of the cold 
treatment facility itself.
    If fruit intended for cold treatment was removed from its shipping 
container outside of the cold treatment facility, there would be an 
increased risk of fruit fly escape due to untreated fruit warming up to 
temperatures that would allow the insect pests that may be in the fruit 
to become more active and possibly to escape when the fly-proof 
packaging is removed from the shipment. Our proposal to require 
devanning inside of the cold treatment facility would ensure that all 
fruit that requires cold treatment remains in a cool environment.
    7. The cold treatment facility must remained locked during non-
working hours.
    This condition would help ensure that unauthorized persons do not 
have access to untreated fruit and, therefore, cannot remove untreated 
fruit from the cold treatment facility.
    8. Blacklight or sticky paper must be used within the cold 
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square 
miles surrounding the cold treatment facility.
    This condition would act as a general safeguard. We propose this 
condition as an extra layer of defense that would trap any fruit flies 
within the facility or within the facility's environs, in the unlikely 
event that a fruit fly manages to survive past the stage of pupation in 
the cold treatment facility.
    9. During cold treatment, a backup system must be available to cold 
treat the shipments of fruit should the primary cold room malfunction. 
The facility must also have one or more reefers (cold holding rooms) 
and methods of identifying lots of treated and untreated fruit.
    This condition would ensure that, in the event that the primary 
cold treatment system fails, additional equipment is on hand at the 
cold treatment facility to perform cold treatments on shipments of 
fruit. Cold holding rooms would be necessary to ensure that shipments 
of fruit remain cool during any waiting period that may ensue from a 
malfunction of the primary cold room. The identification of shipments 
to determine which lots have been treated and which lots need to be 
treated would eliminate the possibility of treated fruit being 
commingled with untreated fruit and thereby further reduce the 
possibility of fruit flies or other insect pests escaping from the cold 
treatment facility.
    10. The cold treatment facility must have the ability to conduct 
methyl bromide fumigations on site. Therefore, the cold treatment 
facility must have fumigation equipment approved by the Deputy 
Administrator of PPQ and a site for conducting fumigation on the 
premises.
    This condition would act as an additional contingency plan to treat 
fruit entering the port of Gulfport, MS. As the risk of fruit fly 
infestation is greater at Gulfport, MS, than at the other ports 
proposed for cold treatment, we have determined that an extra layer of 
protection should be provided by requiring methyl bromide fumigation 
capabilities as an alternative means of eliminating pests from 
shipments of fruit. The criteria for the approval of fumigation 
equipment can be found in the PPQ Treatment Manual.
    With respect to methyl bromide fumigation, the Environmental 
Protection Agency published a notice of final rulemaking in the Federal 
Register on December 10, 1993 (58 FR 65018-65082) which freezes the 
production of methyl bromide at 1991 levels and requires the phasing 
out of domestic use of methyl bromide by the year 2001. APHIS is 
studying the effectiveness and environmental acceptability of 
alternative treatments to prepare for the eventual unavailability of 
methyl bromide fumigation. Our current proposal assumes the continued 
availability of methyl bromide for use as a fumigant for at least the 
next few years.
    11. The cold treatment facility must have contingency plans, 
approved by the Deputy Administrator of PPQ, for safely destroying or 
disposing of fruit.
    This condition would ensure that, in the event a shipment cannot be 
cold treated promptly or properly, the contents of the shipment could 
be safely destroyed or disposed of so that fruit flies and other plant 
pests would not have the opportunity to escape. Examples of adequate 
contingency plans would include the ability to incinerate fruit, to 
bury fruit, or to re-export fruit.
    We believe that the biological barriers and these additional 
conditions

[[Page 18694]]

established for cold treatment at the port of Gulfport, MS, would be 
adequate to prevent the introduction and establishment of fruit flies 
and other plant pests.

Proposal of Special Condition for the Port of Wilmington, NC

    We are also proposing to require that cold treatment facilities at 
the port of Wilmington, NC, remain locked during non-working hours as 
another special condition to cold treatment at the port of Wilmington, 
NC. We have determined that this safeguard, without interfering with 
daily operations at the port, would help ensure that unauthorized 
persons do not have access to untreated fruit and, therefore, cannot 
remove untreated fruit from the cold treatment facility.

Miscellaneous

    We are also proposing to make minor editorial changes for clarity 
and consistency. We propose to amend the language in Sec. 319.56-
2d(b)(5)(iv)(B) to clarify that shipments coming in for cold treatment 
currently consist only of fruit. Section 319.56-2d(b)(5)(iv)(B) states 
that the shipments intended for cold treatment consist of fruits and 
vegetables, but, presently, only certain fruits from certain countries 
are approved for cold treatment.
    We also propose to revise Sec. 319.56-2x(b) to update the list of 
ports that are approved as locations for cold treatment.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
For this action, the Office of Management and Budget has waived its 
review process required by Executive Order 12866.
    In accordance with 5 U.S.C. 603, we have performed an Initial 
Regulatory Flexibility Analysis, which is set out below, regarding the 
impact of this proposed rule on small entities. However, we do not 
currently have all of the data necessary for a comprehensive analysis 
of the effects of this proposed rule on small entities. Therefore, we 
are inviting comments on potential effects. In particular, we are 
interested in determining the number and kind of small entities that 
may incur benefits or costs from the implementation of this proposed 
rule.
    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 proposed rule would amend the regulations governing the 
importation of fruits and vegetables by allowing, under certain 
conditions, the cold treatment of imported fruits upon arrival at the 
ports of Gulfport, MS, Atlanta, GA, and Seattle, WA. Modern cold 
treatment facilities have been or are in the process of being 
constructed at each of these ports.
    Approximately 585.4 million kilograms of fresh fruits and 
vegetables were imported into the United States through the ports of 
Gulfport, MS, Atlanta, GA, and Seattle, WA, during fiscal year 1994. 
The port of Gulfport, MS, handled about 98 percent of the total fresh 
fruit and vegetable imports for these ports. The ports of Atlanta, GA, 
and Seattle, WA, handled 0.25 and 1.75 percent, respectively, of the 
total fresh fruit and vegetable imports for these three ports. During 
fiscal year 1994, approximately 550,330 kilograms (less than one-tenth 
of one percent) of the total fresh fruit imports for these ports were 
cold treated in the country of origin or in transit to the United 
States and, if these ports had been approved for cold treatment, would 
have been eligible for cold treatment upon arrival in the United 
States. Should these ports be approved for cold treatment, we expect 
that an additional 20 million kilograms of new and rerouted fresh 
fruits would be imported through and cold treated at these ports each 
year.
    According to the Small Business Administration, a ``small'' entity 
involved in the wholesale trade of fresh fruits is one that employs no 
more than 100 people. Currently, there are 4,388 ``small'' wholesale 
importers of fresh fruits in the United States. Use of on-site cold 
treatment facilities at the ports of Seattle, WA, Atlanta, GA, and 
Gulfport, MS, may slightly reduce transportation costs for foreign 
fruit exporters, which, in turn, may slightly reduce transportation 
costs for domestic importers and, ultimately, may slightly reduce the 
cost of certain fruits for U.S. consumers. We expect, however, that 
these reductions in costs would be insignificant.
    The alternative to this proposed rule was to make no changes in the 
regulations. After consideration, we rejected this alternative because 
it appears that, with the safeguards proposed, the cold treatment of 
fruit may be conducted at any of the ports proposed in this document 
without significant risk of introducing fruit flies or other injurious 
plant pests.

Executive Order 12778

    This proposed rule would allow cold treatment of certain imported 
fruits to be conducted at the ports of Gulfport, MS, Atlanta, GA, and 
Seattle, WA. If this proposed rule is adopted, State and local laws and 
regulations regarding the importation of fruits under this rule would 
be preempted while the fruits are in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public, and would 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 this proposed rule is 
adopted, 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.

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

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 would be amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 would continue 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 319.56-2d would be amended as follows:
    a. In paragraph (b)(1), by revising the second sentence to read as 
set forth below.
    b. By revising paragraph (b)(5)(iv) to read as set forth below.
    c. By adding new paragraphs (b)(5)(v) and (b)(5)(vi) to read as set 
forth below.


Sec. 319.56-2d  Administrative instructions for cold treatments of 
certain imported fruits.

* * * * *
    (b) * * *
    (1) * * * If not so refrigerated, the fruit must be both precooled 
and refrigerated after arrival only in cold storage warehouses approved 
by the Deputy Administrator and located at the following ports: 
Atlantic ports north of, and including, Baltimore, MD; ports on the 
Great Lakes and St. Lawrence Seaway; Canadian border ports on the

[[Page 18695]]

North Dakota border and east of North Dakota; the maritime ports of 
Wilmington, NC, Seattle, WA, and Gulfport, MS; Seattle-Tacoma 
International Airport, Seattle, WA; Hartsfield-Atlanta International 
Airport, Atlanta, GA; and Baltimore-Washington International and Dulles 
International airports, Washington, DC. * * *
* * * * *
    (5) * * *
    (iv) Special requirements for the maritime ports of Wilmington, NC, 
and Seattle, WA. Shipments of fruit arriving at the maritime ports of 
Wilmington, NC, and Seattle, WA, for cold treatment, in addition to 
meeting all of the requirements in paragraphs (b)(5)(i) through 
(b)(5)(iii) of this section, must meet the following special 
conditions:
    (A) Bulk shipments (those shipments which are stowed and unloaded 
by the case or bin) of fruit must arrive in fruit fly-proof packaging 
that prevents the escape of adult, larval, or pupal fruit flies.
    (B) Bulk and containerized shipments of fruit must be cold-treated 
within the area over which the Bureau of Customs is assigned the 
authority to accept entries of merchandise, to collect duties, and to 
enforce the various provisions of the customs and navigation laws in 
force.
    (C) Advance reservations for cold treatment space must be made 
prior to the departure of a shipment from its port of origin.
    (D) The cold treatment facility must remained locked during non-
working hours.
    (v) Special requirements for the airports of Atlanta, GA, and 
Seattle, WA. Shipments of fruit arriving at the airports of Atlanta, 
GA, and Seattle, WA, for cold treatment, in addition to meeting all of 
the requirements in paragraphs (b)(5)(i) through (b)(5)(iii) of this 
section, must meet the following special conditions:
    (A) Bulk and containerized shipments of fruit must arrive in fruit 
fly-proof packaging that prevents the escape of adult, larval, or pupal 
fruit flies.
    (B) Bulk and containerized shipments of fruit arriving for cold 
treatment must be cold treated within the area over which the Bureau of 
Customs is assigned the authority to accept entries of merchandise, to 
collect duties, and to enforce the various provisions of the customs 
and navigation laws in force.
    (C) The cold treatment facility and Plant Protection and Quarantine 
must agree in advance on the route by which shipments are allowed to 
move between the aircraft on which they arrived at the airport and the 
cold treatment facility. The movement of shipments from aircraft to 
cold treatment facility will not be allowed until an acceptable route 
has been agreed upon.
    (D) Advance reservations for cold treatment space must be made 
prior to the departure of a shipment from its port of origin.
    (E) The cold treatment facility must remained locked during non-
working hours.
    (F) Blacklight or sticky paper must be used within the cold 
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square 
miles surrounding the cold treatment facility.
    (G) The cold treatment facility must have contingency plans, 
approved by the Deputy Administrator, for safely destroying or 
disposing of fruit.
    (vi) Special requirements for the port of Gulfport, MS. Shipments 
of fruit arriving at the port of Gulfport, MS, for cold treatment, in 
addition to meeting all of the requirements in paragraphs (b)(5)(i) 
through (b)(5)(iii) of this section, must meet the following special 
conditions:
    (A) All fruit entering the port for cold treatment must move in 
maritime containers. No bulk shipments (those shipments which are 
stowed and unloaded by the case or bin) are permitted at the port of 
Gulfport, MS.
    (B) Within the container, the fruit intended for cold treatment 
must be enclosed in fruit fly-proof packaging that prevents the escape 
of adult, larval, or pupal fruit flies.
    (C) All shipments of fruit arriving at the port for cold treatment 
must be cold treated within the area over which the Bureau of Customs 
is assigned the authority to accept entries of merchandise, to collect 
duties, and to enforce the various provisions of the customs and 
navigation laws in force.
    (D) The cold treatment facility and Plant Protection and Quarantine 
must agree in advance on the route by which shipments are allowed to 
move between the vessel on which they arrived at the port and the cold 
treatment facility. The movement of shipments from vessel to cold 
treatment facility will not be allowed until an acceptable route has 
been agreed upon.
    (E) Advance reservations for cold treatment space at the port must 
be made prior to the departure of a shipment from its port of origin.
    (F) Devanning, the unloading of fruit from containers into the cold 
treatment facility, must adhere to the following requirements:
    (1) All containers must be unloaded within the cold treatment 
facility; and
    (2) Untreated fruit may not be exposed to the outdoors under any 
circumstances.
    (G) The cold treatment facility must remained locked during non-
working hours.
    (H) Blacklight or sticky paper must be used within the cold 
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square 
miles surrounding the cold treatment facility.
    (I) During cold treatment, a backup system must be available to 
cold treat the shipments of fruit should the primary system 
malfunction. The facility must also have one or more reefers (cold 
holding rooms) and methods of identifying lots of treated and untreated 
fruits.
    (J) The cold treatment facility must have the ability to conduct 
methyl bromide fumigations on-site.
    (K) The cold treatment facility must have contingency plans, 
approved by the Deputy Administrator, for safely destroying or 
disposing of fruit.
* * * * *
    3. In Sec. 319.56-2x(b), the first sentence would be revised to 
read as follows:


Sec. 319.56-2x  Administrative instructions; conditions governing the 
entry of certain fruits and vegetables for which treatment is required.

* * * * *
    (b) If treatment has not been completed before the fruits and 
vegetables arrive in the United States, fruits and vegetables listed 
above and requiring treatment for fruit flies may arrive in the United 
States only at the following ports: Atlantic ports north of, and 
including, Baltimore, MD; ports on the Great Lakes and St. Lawrence 
Seaway; Canadian border ports on the North Dakota border and east of 
North Dakota; the maritime ports of Wilmington, NC, Seattle, WA, and 
Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; 
Hartsfield-Atlanta International Airport, Atlanta, GA; and Baltimore-
Washington International and Dulles International airports, Washington, 
DC. * * *

    Done in Washington, DC, this 23rd day of April 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-10461 Filed 4-26-96; 8:45 am]
BILLING CODE 3410-34-P