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Proposed Rule

Fruits and Vegetables From Hawaii

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Start Preamble Start Printed Page 35932

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

We are proposing to allow bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes to be moved interstate from Hawaii if the fruits and vegetables undergo 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 fruits and vegetables would also have to meet certain additional requirements, including packaging requirements. This action would relieve restrictions on the movement of these fruits and vegetables from Hawaii while continuing to provide protection against the spread of plant pests from Hawaii to other parts of the United States. We are also proposing to amend the irradiation regulations to require cartons of fruits and vegetables that are being moved interstate in accordance with the regulations to be marked with irradiation indicators. This requirement would provide additional protection against the introduction of plant pests into the United States from Hawaii.

DATES:

We will consider all comments we receive that are postmarked, delivered, or e-mailed by July 22, 2002.

ADDRESSES:

You may submit comments by postal mail/commercial delivery or by e-mail. If you use postal mail/commercial delivery, please send four copies of your comment (an original and three copies) to: Docket No. 00-052-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 00-052-1. If you use e-mail, address your comment to regulations@aphis.usda.gov. Your comment must be contained in the body of your message; do not send attached files. Please include your name and address in your message and “Docket No. 00-052-1” on the subject line.

You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.

APHIS documents published in the Federal Register, and related information, including the names of organizations and individuals who have commented on APHIS dockets, are available on the Internet at http://www.aphis.usda.gov/​ppd/​rad/​webrepor.html.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Donna L. West, Import Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.

End Further Info End Preamble Start Supplemental Information

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.

The regulations at § 318.13-4f allow abiu, atemoya, carambola, litchi, longan, papaya, rambutan, and sapodilla to be moved interstate from Hawaii if, among other things, the fruits and vegetables undergo irradiation treatment in accordance with that section. We are proposing to allow bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes to be moved interstate from Hawaii if treated with irradiation in accordance with these same requirements. We are proposing this action because research by the Department's Agricultural Research Service (ARS) has shown that this irradiation treatment can eliminate infestations of fruit flies and other pests in bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes moving interstate from Hawaii. These fruits and vegetables would be added to the list in § 318.13-4f(a) of fruits and vegetables for which irradiation is an approved treatment.

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 designated 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 must be shipped in shipping containers sealed prior to interstate Start Printed Page 35933movement 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 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 § 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.

Paragraphs (c) and (d) of § 318.37-4f set forth procedures for applying for approval and inspection of a treatment facility, and procedures for denial and withdrawal of approval.

Paragraph (e) of § 318.13-4f 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.

Bell peppers, eggplant, pineapple (other than smooth Cayenne), Italian squash, and tomatoes are currently allowed to move interstate from Hawaii if they are first treated for the Mediterranean Fruit Fly (Medfly, Ceratitis capitata), Oriental fruit fly (Bactrocera dorsalis), and melon fly (B. cucurbitae) with vapor heat in accordance with the regulations in § 318.13-4b. Tomatoes may also be moved interstate from Hawaii if they are treated with methyl bromide in accordance with the regulations in § 318.13-4c. This proposed rule, if adopted, would provide for an alternative means of treating eggplant, peppers, pineapple (other than smooth Cayenne), Italian squash, and tomatoes from Hawaii for fruit flies.

Mangoes have not previously been allowed to move interstate from Hawaii due to the absence of an approved treatment to control the mango seed weevil (Sternochetus mangiferae), a pest that occurs in Hawaii, but not in the mainland United States. However, ARS research has recently shown that infestations of mango seed weevil in Hawaiian mangoes are eliminated if the host mangoes receive a minimum absorbed ionizing irradiation dose of 100 Gray (10 krad). Since prior research has shown that fruit fly infestations in fruits can be eliminated with a minimum ionizing irradiation dose of 250 Gray (25 krad), we are proposing to allow mangoes to be moved interstate from Hawaii if they are treated at that dosage, which would eliminate both fruit flies and the mango seed weevil.

We believe that the existing requirements in § 318.13-4f (b) through (e) described above would be sufficient to allow the safe interstate movement of bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes from Hawaii to the mainland United States.

Irradiation Indicators

The regulations in § 318.13-4f do not contain any requirements related to irradiation indicator devices. Indicator devices change color, or undergo some other obvious change, when exposed to irradiation in the required dose range for regulated articles, and can be attached to cartons of articles. We are proposing to amend the regulations in § 318.13-4f to require that irradiation indicators be attached to cartons of irradiated fruits and vegetables from Hawaii that move interstate under the regulations in that section. Abiu, atemoya, bell peppers, carambola, eggplant, litchi, longan, mangoes, papaya, pineapple (other than smooth Cayenne), rambutan, sapodilla, Italian squash, and tomatoes moving interstate from Hawaii that are treated with irradiation in either Hawaii or on the mainland United States would be subject to this requirement.

We are proposing this action because carton indicators would be a useful enforcement tool. They could not serve as primary documentation that articles have been irradiated in accordance with the regulations, because such indicators are not as sensitive or accurate as the dosimetry systems required by the regulations, and because it would be relatively easy to produce fraudulent indicators (e.g., by subjecting a large number of indicators to irradiation and then attaching them to cartons that have not been irradiated). However, we believe that such indicators can be useful when used in conjunction with the other safeguards required by the regulations in § 318.13-4f. In particular, they can be a useful “cross check” when personnel at irradiation facilities are distinguishing irradiated cartons from nonirradiated cartons, and when APHIS inspectors are correlating the required interstate movement certificates with the cartons referred to in the documents.

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 bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes to be moved interstate from Hawaii if they are treated with irradiation in accordance with the regulations in § 318.13-4f. Irradiation at certain dosages eliminates infestations of pests in fruits and vegetables. Irradiation also eliminates bacterial or fungal growth that can otherwise cause accelerated spoilage and result in illness. Bacterial contamination can come from soil, insects, bird or rodent droppings, or the water used in processing.

We are also proposing to require that irradiation indicators be attached to cartons of any fruits or vegetables from Hawaii that are eligible to move interstate under the regulations if treated with irradiation in accordance with § 319.13-4f.

Effects on Producers and Shippers of Fruits and Vegetables

Since 1995, the amount of land used for commercial production of mangoes in Hawaii has nearly tripled, and more than 7,500 new mango trees have been planted. However, producers in Hawaii have not been able to ship mangoes to the mainland United States due to the presence of the mango seed weevil in Hawaii (the mango seed weevil is not present in the mainland United States).[1] If this proposal is adopted, the irradiation treatment would be the first approved treatment for the mango seed weevil, thereby opening up the mainland U.S. mango market to Hawaiian mangoes.

U.S. production of mangoes has primarily been in southern Florida, with a smaller quantity grown in Hawaii and a negligible amount produced in California. According to the 1997 Census of Agriculture, there were 218 Start Printed Page 35934mango farms in Florida, 171 in Hawaii, and 2 in California. The total domestic harvest that year was about 2,829 metric tons, of which about 97 percent was produced in Florida and about 3 percent (approximately 85 metric tons) produced in Hawaii. According to National Agricultural Statistics Service data, Hawaii produced approximately 72 metric tons of mangoes in 1999. It is unlikely that this proposed rule, if adopted, would result in a significant amount of mangoes being moved from Hawaii to the mainland United States because it is expected that nearly all mangoes produced in Hawaii will continue to be consumed within the State. Further, given that the United States imported 219,000 metric tons of mangoes between September 1998 and August 1999, any movements of Hawaii-grown mangoes to the mainland United States would be insignificant in contrast to the volume of annual imports.

Bell peppers, eggplant, pineapple (other than smooth Cayenne), Italian squash, and tomatoes are currently allowed to move interstate from Hawaii if they are first treated for Medfly, Oriental fruit fly, and melon fly with vapor heat in accordance with the regulations in § 318.13-4b. Tomatoes may also be moved interstate from Hawaii if they are treated with methyl bromide in accordance with the regulations in § 318.13-4c. This rule, if adopted, would provide for an alternative means of treating bell peppers, eggplant, pineapple (other than smooth Cayenne), Italian squash, and tomatoes from Hawaii for fruit flies and other pests.

Since 1995, Hawaii's production of bell peppers, eggplant, Italian squash, and tomatoes has increased in value and volume (see tables 1 and 2). Hawaii's production of pineapples (other than smooth Cayenne) has decreased by 4 percent, but its value has increased by 6 percent.

Table 1.—Production of Selected Vegetables in Hawaii.

Year
1995199619971998
Bell Peppers
Volume (fresh weight in lbs.)2,400,0002,600,0002,000,0003,000,000
Value$1,392,000$1,248,000$980,000$1,500,000
Eggplant
Volume (fresh weight in lbs.)1,200,0001,300,0001,500,0001,300,000
Value$984,000$949,000$1,185,000$1,053,000
Pineapples (other than smooth Cayenne)
Volume (fresh weight in lbs.)760,594,590765,003,834714,297,528731,934,504
Value$87,360,000$95,914,000$91,721,000$92,776,000
Italian Squash
Volume (fresh weight in lbs.)620,000700,0001,400,0001,500,000
Value$316,000$336,000$700,000$735,000
Tomatoes
Volume (fresh weight in lbs.)6,000,0007,000,00010,200,00010,200,000
Value$2,910,000$3,710,000$5,508,000$5,610,000

Table 2.—Change in Production of Selected Vegetables in Hawaii Between 1995 and 1998

Volume (percent)Value (percent)
Bell Peppers−4+6
Eggplant+70+93
Pineapples (other than smooth Cayenne)+25+8
Italian Squash+8+7
Tomatoes+142+96

According to the Hawaii Agricultural Census, there were 27 farms growing pineapples for commercial sale in 1997. Twenty-two (or 82 percent) of those farms harvested between 1 and 14 acres of pineapple. During the same year, 74 farms produced tomatoes for commercial sale (a total of 388 acres harvested). There are no official data with respect to the number of farms in Hawaii producing bell peppers, eggplant, and Italian squash during the same year. However, considering that in 1997 there were 657 farms in Hawaii that harvested fruits and vegetables for sale (90 percent of which had less than 14 acres of crops planted), we believe that the majority of farms producing bell peppers, eggplant, and Italian squash for sale were small according to Small Business Administration (SBA) criteria. It is also likely that the majority of firms shipping bell peppers, eggplant, and Italian squash interstate from Hawaii are small according to SBA criteria.

Regardless of their size, Hawaii's fruit and vegetable producers and shippers who move fruits and vegetables interstate from Hawaii would benefit from the availability of an additional treatment alternative, especially since the proposed treatment is less time-consuming than the presently available vapor heat treatment (see table 3 below).

Table 3.—Comparison of Irradiation and Vapor Heat Treatments

IrradiationVapor heat
Cost$0.22 to $0.33/kg (treatment cost) + $0.05 to $0.10/carton (indicator cost)$0.20 to $0.50/kg.
Start Printed Page 35935
Treatment Time40 minutes1.5 to 7 hours.

Effects on Treatment Facilities

The proposed irradiation treatments for bell peppers, eggplants, mangoes, pineapples (other than smooth Cayenne), Italian squash, and tomatoes would take place mostly at a new facility that was recently built in Hawaii. However, it is possible that some of these fruits and vegetables could be shipped to the mainland United States and treated with irradiation at facilities in Illinois or New Jersey. At present, various other tropical fruits, such as papaya, litchi, rambutan, carambola, and atemoya are shipped from Hawaii to a facility in Illinois for cobalt irradiation treatment.

On August 1, 2000, a new x-ray irradiation facility in Hawaii began treating papayas, which, after their x-ray treatment, are commercially shipped to the mainland United States. This facility treats between 500 to 1,000 boxes of papayas per day, 4 days per week.

This facility would be the primary irradiation facility to treat Hawaii-grown bell peppers, eggplants, mangoes, pineapples (other than smooth Cayenne), Italian squash, and tomatoes before they are moved interstate. However, if there is not enough capacity at the Hawaiian plant for the fruits to be irradiated, the fruits could be sent for treatment to any of the three irradiation treatment facilities on the mainland United States.

According to SBA criteria, the facility in Hawaii mentioned in the previous paragraphs is a small entity (i.e., an entity with annual sales of less than $5 million). Another firm that provides irradiation treatments for fruits and vegetables owns two irradiation facilities in Illinois and one facility in New Jersey. This other firm, which primarily provides irradiation treatment to sanitize medical devices, is not a small entity according to SBA criteria.

This proposed rule, if adopted, would benefit the Hawaiian treatment facility, and may benefit the mainland facilities if the Hawaiian facility cannot keep up with demand for treatment of fruits and vegetables moving interstate from Hawaii. The proposed rule could also potentially benefit U.S. mainland consumers by increasing the mainland's supply of those fruits and vegetables that would be eligible for interstate movement with irradiation treatment.

Additional Effects of Proposed Irradiation Indicator Requirement

Under the proposed regulations, irradiation indicators would be required to be attached to cartons of any fruits or vegetables that are moved interstate from Hawaii and that are irradiated in Hawaii or on the mainland United States. Prototypes of such indicators have already been developed, and are based on dosimeter technology. The indicators would be considerably less expensive to manufacture than dosimeters because no precise measurement is involved only—an indication that irradiation has occurred.

APHIS anticipates that manufacturers of indicators could produce the indicator in large quantities at a low unit cost—$0.05 to $0.10 per indicator. The cost of the indicators, once they are produced in volume, will be negligible compared to the value of the produce shipped.

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. 00-052-1. Please send a copy of your comments to: (1) Docket No. 00-052-1, Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule would allow bell peppers, eggplant, mangoes, pineapple (other than smooth Cayenne), Italian squash, and tomatoes to be moved interstate from Hawaii if the fruits and vegetables undergo irradiation treatment at an approved facility in Hawaii or in non-fruit-fly-supporting areas of the mainland United States. In order for the fruits and vegetables to move interstate to the mainland United States, we would have to issue certificates or limited permits, and we would have to mark and seal shipping containers. We would also require that persons treating fruits and vegetables with irradiation for interstate movement from Hawaii would need to attach irradiation indicators to each carton of irradiated fruits and vegetables. These information collection activities would help ensure that only those fruits and vegetables 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. These comments will 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 Start Printed Page 35936

(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 0.127 minutes per response.

Respondents: Fruit producers, shippers, importers, irradiation facility personnel, and State plant regulatory officials.

Estimated annual number of respondents: 756.

Estimated annual number of responses per respondent: 7,659.

Estimated annual number of responses: 5,790.

Estimated total annual burden on respondents: 736 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

Start List of Subjects

List of Subjects in 7 CFR Part 318

End List of Subjects

Accordingly, we propose to amend 7 CFR part 318 as follows:

Start Part

PART 318—HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES

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

Start Authority

Authority: 7 U.S.C. 7711, 7712, 7714, 7731, 7754, and 7756; 7 CFR 2.22, 2.80, and 371.3.

End Authority

2. Section 318.13-4f would be amended as follows:

a. By revising paragraph (a).

b. By redesignating paragraphs (b)(7) and (b)(8) as paragraphs (b)(8) and (b)(9), respectively, and by adding a new paragraph (b)(7).

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, bell pepper, carambola, eggplant, litchi, longan, mango, papaya, pineapple (other than smooth Cayenne), rambutan, sapodilla, Italian squash, and tomato.

(b) * * *

(7) Indicators. Each carton of fruits and vegetables must bear an indicator device, securely attached prior to irradiation, that changes color or provides another clear visual change when it is exposed to radiation in the dose range required by this section for the pests for which the articles are being treated.

* * * * *
Start Signature

Done in Washington, DC, this 16th day of May, 2002.

Peter Fernandez,

Acting Administrator, Animal and Plant Health Inspection Service.

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Footnotes

1.  The mango seed weevil attacks mango seeds, but rarely the fruit, and may cause slight fruit drop in production areas. The mango seed weevil poses no threat to other crops or flora. It is strictly monophagous.

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[FR Doc. 02-12810 Filed 5-21-02; 8:45 am]

BILLING CODE 3410-34-U