[Federal Register: August 29, 2001 (Volume 66, Number 168)]
[Proposed Rules]
[Page 45637-45648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au01-31]
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[[Page 45637]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 00-014-1]
RIN 0579-AB18
Phytosanitary Certificates for Imported Fruits and Vegetables
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend our regulations to require that a
phytosanitary certificate accompany all fruits and vegetables imported
into the United States, with certain exceptions. This proposal would
include commercial produce imported into the United States as well as
fruits and vegetables brought in by travelers. We would exempt fruits
and vegetables that are dried, cured, frozen, or processed, as well as
fruits and vegetables that travelers and shoppers bring into the United
States for personal use through land ports of entry located along the
Canadian and Mexican borders. The regulations currently do not require
that phytosanitary certificates accompany produce imported into this
country, except for certain fruits and vegetables grown in designated
foreign regions. We believe this change is necessary to help prevent
foreign plant pests from being introduced into and disseminated within
the United States. If implemented, this proposal would require changes
in the practices of importers and travelers who bring produce into the
United States from other countries.
DATES: We invite you to comment on this docket. We will consider all
comments that we receive by October 29, 2001.
ADDRESSES: Please send four copies of your comment (an original and
three copies) to: Docket No. 00-014-1, Regulatory Analysis and
Development, PPD, APHIS, Suite 3C03, 4700 River Road, Unit 118,
Riverdale, MD 20737-1238.
Please state that your comment refers to Docket No. 00-014-1.
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.
FOR FURTHER INFORMATION CONTACT: Mr. Wayne D. Burnett, Senior Import
Specialist, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-
1236; (301) 734-6799.
SUPPLEMENTARY INFORMATION:
Background
The Plant Protection Act (7 U.S.C. 7701-7772) authorizes the
Secretary of Agriculture to prohibit or restrict the importation and
entry into the United States of any plants and plant products,
including fruits and vegetables, to prevent the introduction of plant
pests or noxious weeds into the United States. Under this authority,
the Animal and Plant Health Inspection Service (APHIS) administers
regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 through
319.56-8) (referred to below as the regulations) that prohibit or
restrict the importation of fruits and vegetables into the United
States from various regions of the world to prevent the introduction
and dissemination of plant pests. One form of regulatory restriction
placed on certain imported fruits and vegetables is that the shipment
be accompanied by a phytosanitary certificate.
A phytosanitary certificate is a document issued by a plant
protection official of a national government to facilitate the
international movement of a plant or plant product. A phytosanitary
certificate attests to the phytosanitary status of the plant or plant
product, including the plant or plant product's origin, as well as
certification that the plant or plant product has been inspected and/or
tested, is considered to be free from plant pests of quarantine
significance, and is otherwise believed to be eligible for importation
into the country of destination pursuant to the phytosanitary laws and
regulations of that country. A phytosanitary certificate may include
additional declarations containing information required by the
importing country and not routinely noted on the certificate.
The form, content and use of phytosanitary certificates is governed
by the International Plant Protection Convention (IPPC). The IPPC is a
multilateral treaty under the auspices of the Food and Agriculture
Organization of the United Nations (FAO) and is administered through
the IPPC Secretariat located in FAO's Plant Protection Service. The
IPPC is recognized by the World Trade Organization in the Agreement on
the Application of Sanitary and Phytosanitary Measures as the source
for international standards for phytosanitary measures affecting trade.
Over 100 governments, including the United States, are contracting
parties to the IPPC.
The use of phytosanitary certificates in conjunction with the
shipment of agricultural and other plant material is the approach that
regulatory officials around the world are increasingly relying on to
help reduce the introduction and spread of plant pests. Phytosanitary
certificates are recognized as an internationally accepted form of pest
risk mitigation. Pest risk mitigation at the place of origin is often
viewed as the most viable means of preventing the introduction of plant
pests. Our trading partners and the IPPC have also recognized that the
responsibility of pest risk mitigation and quarantine compliance can be
shifted to the exporting country.
Phytosanitary certificates are in wide use in international trade.
APHIS issues hundreds of thousands of phytosanitary certificates each
year to facilitate the export of U.S. agricultural products to
countries that require certificates to accompany such products. We also
require that a number of agricultural products imported into the United
States be accompanied by a
[[Page 45638]]
phytosanitary certificate to ensure freedom from certain plant pests.
Articles that must have a phytosanitary certificate to be imported into
the United States include citrus from South Africa (Sec. 319.56-2q);
papayas from Brazil and Costa Rica (Sec. 319.56-2w); cantaloupe,
honeydew melons, and watermelon from Brazil and Venezuela (Sec. 319.56-
2aa); tomatoes from Spain, France, Morocco and Western Sahara
(Sec. 319.56-2dd); pears from China (Sec. 319.56-2ee); Hass avocados
from Mexico (Sec. 319.56-2ff); peppers from Spain (Sec. 319.56-2gg);
and garlic from a number of countries (Sec. 319.56-2g). Phytosanitary
certificates must also accompany nursery stock, plants, roots, bulbs,
seeds, and other plant products imported into the United States under 7
CFR 319.37 through 319.37-14.
On August 4, 1995, we published an advance notice of proposed
rulemaking (ANPR) in the Federal Register (60 FR 39888-39889, Docket
No. 95-04601). The ANPR sought comments on whether all fruits and
vegetables imported into the United States should be accompanied by a
phytosanitary certificate. This included commercial shipments of fruits
and vegetables as well as produce brought into the United States by
travelers and shoppers. The majority of comments submitted to APHIS in
response to the ANPR generally opposed the expanded use of
phytosanitary certificates. A number of commenters were particularly
concerned that this requirement would cause significant disruptions and
delays in commercial shipments of produce from Canada and Mexico.
Others contended that the specific pest risk was not adequately
demonstrated to justify the uniform, widespread application of this
requirement. After considering the comments, we believe it is necessary
that we move forward with this proposal, subject to certain exceptions,
for the reasons discussed below.
In this document we are proposing to amend the regulations to
require that a phytosanitary certificate accompany all fruits and
vegetables imported into the United States, with certain exceptions.
This proposal would apply to all commercial shipments of fruits and
vegetables imported into the United States, as well as to all fruits
and vegetables brought in by individual travelers for personal use. We
would exempt fruits and vegetables that are dried, cured, frozen, or
processed unless we determine that the drying, curing, freezing, or
processing to which the fruits or vegetables have been subjected does
not entirely eliminate pest risk. We would also exempt fruits and
vegetables that travelers and shoppers bring into the United States for
personal use through land ports of entry located along the Canadian and
Mexican borders.
We define commercial shipment in Sec. 319.56-1 of the regulations
as a shipment containing fruits and vegetables that an inspector
identifies as having been produced for sale and distribution in mass
markets. Identification of a particular shipment as commercial is based
on a variety of indicators, including, but not limited to, the quantity
of produce, the type of packaging, identification of a grower or
packing house on the packaging, and documents consigning the shipment
to a wholesaler or retailer.
Requiring fruits and vegetables imported into the United States to
be accompanied by a phytosanitary certificate would mean that U.S.
importers would have to get the certificate from an official agency of
the country where the goods originate. Typically, this would entail an
inspection by a plant protection official of the foreign country,
certification of where in the country of origin the fruit or vegetables
were grown or acquired their phytosanitary status, and a statement that
the shipment is free of plant pests of quarantine significance. The
certifying country usually charges a fee for these services. Travelers
to the United States from foreign countries, unless entering the United
States through land border ports, also would be required to obtain a
phytosanitary certificate for any fruits or vegetables they wish to
bring into the country. This would be true even for travelers bringing
fruits and vegetables with them in baggage for personal use.
Because adoption of this proposal would require changes in the
practices of importers and travelers who bring produce into the United
States, we would conduct an intensive public relations and education
campaign to alert importers and travelers to the new requirements. We
would also delay the effective date of the rule until at least 6 months
after publication of the final rule.
Inspection Role of APHIS
Over the past 200 years, several thousand foreign plant and animal
species have become established in the United States. About one in
seven has become invasive, leading to economic harm to the United
States that runs in the billions of dollars annually. Invasive species
are nonindigenous organisms whose introduction can cause economic and
environmental harm as well as harm to human health. Problems associated
with invasive species are national in scope and are becoming more and
more widespread. Once an invasive species establishes itself, it is
often difficult and expensive to remove. Recent cases in which invasive
species have had a significant effect on fruits and vegetables in the
United States include, among others, citrus canker, plum pox virus, and
various fruit flies, including the Mediterranean fruit fly (Medfly),
Mexican fruit fly, and Oriental fruit fly.
APHIS is one of three primary Federal Inspection Service (FIS)
agencies responsible for monitoring the movement of cargo and
passengers into the United States. The two other FIS agencies are the
U.S. Customs Service (U.S. Customs) in the Department of the Treasury
and the Immigration and Naturalization Service (INS) in the Department
of Justice. APHIS is the lead Federal agency responsible for preventing
the introduction of foreign plant pests and noxious weeds. Plant pests
or noxious weeds new to or not known to be widely prevalent in the
United States constitute a potential threat to crops and other plants
or plant products. It is the job of APHIS to facilitate exports,
imports, and interstate commerce in agricultural products and other
commodities in ways that will reduce, to the extent practicable, the
risk of introducing plant pests or noxious weeds into and within the
United States.
At one time, U.S. Customs carried out all primary inspection
activity involving the importation of food, plant, and animal articles
into the United States. This included initial screening as well as
actual inspection of cargo and baggage. APHIS officials were generally
called in by U.S. Customs only upon discovery of plant and animal
articles.
This allocation of duties has changed in recent years. Beginning in
the 1980's, APHIS assumed greater responsibility in conducting the
initial screening of cargo and passengers with regard to food, plant,
and animal products and now has primary responsibility for carrying out
the actual inspection of cargo, as well as baggage, containing or
suspected of containing food, plant, and animal articles. We also
inspect nonagricultural products that may carry plant pests. In FY
1999, we employed approximately 2,000 inspectors at 126 land, sea, and
air ports of entry in carrying out these services, which we refer to as
agricultural quarantine inspection (AQI) activities. By comparison, in
the early 1980's we employed approximately 1,200 inspectors.
Expenditures for AQI activities in FY 2000 totaled approximately $182
million. For the same fiscal year, APHIS received
[[Page 45639]]
approximately $26.8 million in appropriations for AQI activities along
with $137.5 million in user fees, with remaining revenues coming from
other sources such as reimbursable overtime and issuance of
phytosanitary certificates.
The detection of plant pests in commercial shipments of fruits and
vegetables is usually predicated on inspecting samples of the shipment.
APHIS inspectors follow detailed guidelines on selecting a sample
representative of the entire shipment. Inspection of pedestrians,
travelers, and passenger vehicles follows a two-stage process, primary
and secondary inspection. During primary inspection, APHIS inspectors
screen passengers, their baggage, and vehicles by questioning the
individuals, reviewing their written declaration, and visually
observing for possible referral for further examination. We also use x-
ray equipment and detector dogs to aid in this process. Secondary
inspection involves more detailed questioning of the individual and a
visual examination of baggage contents, if necessary. Passenger and
baggage inspection tends to require more APHIS staffing and resources
in comparison to other AQI activities.
Historically, APHIS has not required all fruits and vegetables
imported into the United States to be accompanied by a phytosanitary
certificate. We have instead relied largely on having well-trained
personnel to inspect imported produce. Port of entry inspection was,
and continues to be, the primary safeguard to which all imported
produce is subject. However, we are increasingly using other
``offshore'' safeguarding measures for imported fruits and vegetables,
such as preclearance inspection in the country of origin, treatments,
and phytosanitary certification. These additional measures have become
crucial in augmenting inspection efforts in light of worldwide
developments and trends involving the movement of goods and people.
Effect of Growth in Trade and Travel
In recent years, opportunities for international commerce and
travel have reached unprecedented levels. This has resulted in an
explosive growth in both commercial and noncommercial shipments of
fruits and vegetables imported into the United States by shippers,
travelers, and other individuals. For example, from 1995 to 1999, the
value of U.S. agricultural imports increased from $30.6 billion to
approximately $38 billion. Fruits and vegetables represent a growing
share of this import total as refrigerated containerization and other
technological improvements have made it possible to ship perishable
commodities longer distances. In 1999, the total value of fruits and
vegetables imported into the United States was $4.74 billion. Moreover,
the number of international air passengers traveling to the United
States has increased over 50 percent during this same period, exceeding
60.8 million passengers in FY 1999.
This growth in trade and travel has not only been with our major
trading partners. The movement towards a more globalized marketplace
has resulted in increased trade and travel with a number of other
countries as well. This has presented us with new challenges in better
understanding the pest complexes and potential pest risks associated
with goods from these regions.
In response to this growth in international activity, there has
been an expansion in the number of U.S. ports of entry. Unfortunately,
the number of potential pathways for the movement and introduction of
foreign, invasive plant pests has increased with this boom in global
trade and travel, placing a tremendous demand on APHIS' inspection
services.
Coupled with this unprecedented growth in international commerce
and travel, APHIS and other FIS agencies have been directed to carry
out their inspection responsibilities in a more timely manner.
Recognizing the importance of trade to the national economy, we and our
FIS partners have responded by adopting new customer service standards
to move the increasing volume of passengers and cargo through ports of
entry within specific time periods. For example, current standards call
for the agencies to clear international airline passengers within 30
minutes of arrival. Similarly, APHIS has adopted standards to schedule
inspections of perishable cargo within 3 hours of being notified of its
arrival.
APHIS' record in preventing the introduction and establishment of
harmful agricultural invasive species in recent years is noteworthy.
Yet, the unprecedented growth in international trade and travel has
placed the current system, which relies primarily on inspection at the
port of entry, under stress. Studies, reports, and other data have
documented how the current AQI system faces a number of challenges in
keeping pace with the increasing amount of produce entering this
country through commercial channels and by means of individual
travelers. For example, a 1993 report by the U.S. Congressional Office
of Technology Assessment concluded that policies designed to protect
the United States from the introduction of harmful invasive species
were not safeguarding our national interests. It further concluded that
the current system was unable to keep pace with new pest pathways and
introductions. Similarly, a 1997 report by the U.S. Government
Accounting Office (GAO) declared that the increasing flow of passengers
and cargo is far outdistancing APHIS inspection capabilities despite a
78 percent increase in funding and a 44 percent increase in staffing
for AQI activities since 1990. According to the GAO, the APHIS workload
has been directly affected by the increase in international trade and
travel, both in the volume of cargo and number of international
passengers traveling to the United States. Furthermore, increases in
the number of ports of entry, as well as the increased risk at existing
ports due to expanded volume, have extended APHIS' workload.
Our own AQI monitoring survey and sampling data covering
international air passengers arriving in the United States raise
similar concerns as to the effect this growth in imported fruits,
vegetables, and other agricultural products is having on our inspection
efforts. Based on a sample of 149,431 international air passengers
arriving in the United States in FY 1999, we found that 12,833 (or 8.6
percent) of these passengers were carrying some type of plant item
subject to inspection and possible seizure. Further, we found that
7,451 (5.0 percent) of these passengers carried a plant item that was
either prohibited or was subject to seizure because the plant item was
infested or the plant item's origin could not be established. To the
extent we can generalize, based on this sampling data approximately 5.2
million of the 60.8 million international air travelers arriving in the
United States in 1999 would have carried some type of plant item
subject to inspection and possible seizure, and that approximately 3.0
million of these passengers carried plant items that would have been
prohibited or subject to seizure because the item was infested or the
item's origin could not be established. Although we do not maintain
data on the types of plant items brought in by air passengers, we know
from experience that most of the items would be some form of fruits or
vegetables.
An earlier study, an APHIS survey on Medfly exclusion efforts,
covered a 12-month period over 1993 and 1994 and involved the
inspection of 71,175 passengers out of a total of 14,679,905 passengers
arriving at 12 airports, both directly and via hub cities from
countries where Medfly existed. Based
[[Page 45640]]
on the number of quarantine pests detected during the survey, we
estimated that approximately 11,000 quarantine pests were imported by
the 14,679,905 passengers. These results probably would have shown even
higher pest detections, except that the survey did not include
passengers from Asia and Australia or non-Medfly host material and
other produce that was not declared.
With respect to commercial shipments, our inspectors must now
contend not only with an increased volume of imports, but also with
changing transportation modes and technologies. These include increased
use of containerized cargo, and transshipments through one or more
countries, as well as sharing of vessel container space. These market-
driven trends, while resulting in greater transportation efficiencies,
can make inspection more problematic, particularly during high-volume
periods. Container characteristics that account for productivity gains
for industry present challenges for inspectors, since the cargo is not
as easily accessible or observable for inspection. Unloading and
reloading of the contents is costly, and the threat of invasive plant
pest introductions extends more readily beyond the port of entry if the
cargo is not unloaded until reaching its final destination. This
reverses the historical pattern where species generally first appeared
at ports of entry. Since containers are used and reused many times for
many different types of cargo, and shipped all over the world, there is
also the potential that pests from previous shipments can contaminate
the container itself.
Requiring the unloading and reloading of cargo en route for
purposes of inspection can be a time consuming and expensive process,
while inspecting only the accessible areas of the shipment does not
necessarily yield a sample representative of the entire cargo. In fact,
in selecting a sample from the tailgate area of a container or truck,
we have found that if infested cargo is elsewhere in the container or
truck, it will likely not be detected 40 to 60 percent of the time.
Phytosanitary certification at the place of origin would help address
pest risk concerns while reducing the need for lengthy inspection and
the consequent delays and disruptions as containers arrive in the
United States for further shipment to their final destination.
In an effort to objectively evaluate and improve our ability to
safeguard U.S. resources from invasive species, APHIS recently arranged
to have the National Plant Board (NPB) conduct a thorough review of all
aspects of our safeguarding system. The review group, composed of
State, industry, academia, and environmental groups, conducted
extensive research, interviews, site visits, and other interactions
with APHIS and its stakeholders. In preparing its evaluation, the
review group focused on four major areas: Pest exclusion, responses to
pests that breach the exclusion system, use of permits to control the
movement of pests, and collection and use of international information.
The review group's 1999 report, ``Safeguarding American Plant
Resources, A Stakeholder Review of the APHIS-PPQ Safeguarding System''
(Safeguarding Report),\1\ contained over 300 recommendations addressing
the four major areas of focus.
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\1\ The Safeguarding Report is available upon written request
from the person listed under FOR FURTHER INFORMATION CONTACT. It is
also available on the Internet at http://www.aphis.usda.gov/ppq/
safeguarding.
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The Safeguarding Report identifies a number of opportunities to
enhance the safeguarding system. In the area of pest exclusion, the
Safeguarding Report addresses issues relating to preclearance
inspection in the country of origin, smuggling interdiction, handling
of commercial cargo, initiatives with regard to the traveling public,
port of entry inspection, application of technology, risk analysis,
utilization of user fees, and public education and awareness, to name
just a few. As of April 2001, a number of recommendations contained in
the Safeguarding Report have been implemented, including enactment of
the Plant Protection Act, increased use of digital imaging for pest
identification, and expanded collection of user fees.
The Safeguarding Report strongly recommends that we modify our risk
management strategy, which has relied primarily on port of entry
inspections as the main line of defense, to also include other
alternative measures to exclude invasive species. It specifically urges
us to take a more proactive approach towards the prevention and
detection of harmful plant pests through greater use of offshore
mitigation measures, including the use of phytosanitary certificates,
to supplement inspection at the port of entry.
The Safeguarding Report also specifically recommends that we
prohibit the importation of unprocessed food and plant products by the
traveling public, or, alternatively, require that such items be
accompanied by a phytosanitary certificate. Although a total
prohibition on these items would ease enforcement and reduce the amount
of potential host material moving into the United States, we have opted
for a less restrictive measure of allowing the continued importation of
produce by the traveling public, subject to the phytosanitary
certificate requirement. We believe this proposed course of action
should significantly curtail the quantity of produce brought in by
travelers and thereby reduce the risk of pest introduction, yet provide
those travelers who wish to bring in produce the opportunity to do so
by procuring a phytosanitary certificate.
As mentioned earlier, our proposal would provide an exception to
the phytosanitary certificate requirement for fruits and vegetables
that are dried, cured, frozen, or processed. We would also exempt
noncommercial shipments of produce brought into the United States by
travelers and shoppers through land ports of entry located along our
borders with Canada and Mexico (see discussion under heading,
``Travelers and Shoppers Entering the United States Through Land Border
Ports'').
Why Target Commercial Shipments
Commercial shipments of fruits and vegetables imported into the
United States have increased significantly over the last decade as
shipping technologies and other factors relating to trade have
facilitated the importation of larger quantities of perishable items to
this country. This trend is likely to continue as the global
marketplace becomes more integrated and U.S. consumers come to expect a
year-round supply of various varieties of fruits and vegetables.
We have responded to the increased flow of commercial shipments of
agricultural goods into this country with additional staffing,
resources, and other measures. However, the growth in imports has
increased at a faster rate than our ability to inspect using
traditional means. The large amount of prohibited material passing
through inspection undeclared or undetected persists. It is apparent
that the current reliance on inspection at the port of entry is no
longer sufficient, by itself, to adequately respond to the new dynamics
governing the commercial movement of imported fruits and vegetables
into this country. Even with additional staffing and resources, what
can be done at the inspection site is limited, particularly if
commercial shipments are to be released in a timely manner.
Requiring phytosanitary certificates for commercial shipments of
imported fruits and vegetables would help alleviate the workload of
APHIS inspectors at the port of entry by providing inspectors with
verifiable information as to the place of origin
[[Page 45641]]
where the goods acquired their true phytosanitary status, i.e., where
the goods were exposed to possible infestation or contamination by
pests. Normally, this will be the place where the commodity was grown.
The phytosanitary certificate would also provide the added security
that the shipment has already been inspected by a plant protection
official of a national government in the exporting country.
The required use of phytosanitary certificates would also help
mitigate inspection concerns relating to container shipments.
Containers present challenges for inspectors, since the cargo is often
not easily accessible or observable for inspection. Unloading and
reloading of the contents for purposes of inspection can be a time
consuming and expensive process, while inspecting only the accessible
areas of the shipment does not necessarily yield a sample
representative of the entire cargo. Phytosanitary certification based
on inspection at the place of origin would help address some of these
concerns involving the use of containers. It would lessen the potential
need for lengthy inspection and the consequent delays and disruptions
upon arrival in the United States.
Requiring phytosanitary certificates for commercial shipments of
imported fruits and vegetables would also help overcome inspection
challenges by accurately identifying the origin of the shipment's
contents. This is particularly important when the shipment has moved
through more than one country prior to arrival in the United States. It
is becoming more common for perishable agricultural products to be
shipped from the country where produced to intermediate layover points
in other countries (for further handling and storage) before shipment
to the country of final destination. While in storage, these goods may
be split up, combined with other consignments from other regions, or be
repackaged. The laws of the country where the goods are being
temporarily stored may allow for commingled shipments to be labeled as
originating there so long as a portion of the shipment includes goods
produced in that country. Such practices may obscure the true origin of
certain contents in the shipment. For example, it may not be readily
apparent that a shipment exported from a low-risk pest region includes
articles that were produced in a high-risk pest region. Phytosanitary
certificates would help alleviate identification issues relating to the
goods' origin, since even goods that are in a commingled shipment or
repackaged must still be certified as to their place of origin.
Requiring phytosanitary certificates for all commercial shipments
of imported fruits and vegetables would be an important step in
mitigating the pest risk associated with the increased volume of
commercial produce coming into this country. It would help alleviate
inspection concerns with respect to cargo shipped in containers as well
as identification issues involving the goods' place of origin.
Ultimately, phytosanitary certification should expedite the clearance
process at the port of entry for commercial shippers, while providing
needed additional security against the introduction and dissemination
of invasive plant pests into the United States.
Why Target Travelers
Imported produce brought into the United States by travelers poses
a risk because:
The origin of the produce is often difficult to determine;
There is a greater chance that the produce is grown in
backyard gardens with little or no pest control. Historically,
decisions to allow importation of produce have been based on an
evaluation of the pest risk associated with commercial production, not
backyard production;
Travelers bring noncommercial varieties with unknown
susceptibility to pests; and
The fruits are often ripe or overripe, and, therefore
particularly susceptible to infestations.
The required use of phytosanitary certificates would significantly
reduce the total amount of fruits and vegetables brought in by
travelers arriving by plane or other means of transportation, resulting
in far less infested produce being imported. For travelers who do bring
in produce accompanied by a phytosanitary certificate, the inspection
process at the port of entry would be more efficient as inspection
officers could better determine the origin of the produce. There should
also be more consistency in identifying products subject to
confiscation. Currently, it is often difficult for inspectors to
determine the origin of produce when interviewing passengers. This can
result in items being seized that should not be, while other items are
released that should be seized. If the number of passengers arriving
with produce is significantly reduced, then inspection officers
currently required on the baggage floor to facilitate entry of products
would be free to conduct more cargo sampling and other detection and
compliance activities.
We have considered the potential difficulty, particularly in the
initial years, of travelers procuring a phytosanitary certificate. For
example, phytosanitary certificates are required to include detailed
information about where the fruit or vegetable was grown and, in
certain cases, where or how it was treated. This kind of information
may not be readily available to travelers or shoppers who purchase the
products at a market in a foreign country. We have also taken into
account that, even if readily available, the cost of obtaining a
certificate may outweigh the benefits for those carrying small amounts
of produce with them for personal use. However, the inconveniences and
hardships to certain travelers would be more than offset by the fact
that this requirement would provide a considerable measure of added
protection against the introduction of foreign plant pests by
travelers.
Travelers and Shoppers Entering the United States Through Land Border
Ports
We are proposing to exempt noncommercial shipments of produce
brought in by travelers and shoppers entering the United States through
land ports along the Mexican and Canadian borders. We believe that the
existing system of inspection provides sufficient protection against
the introduction of plant pests in produce carried in by individuals
through these ports for personal use, and not for sale.
Vehicular and pedestrian traffic in the millions crosses our land
borders annually. In FY 2000, approximately 90.9 million vehicles and
51.0 million pedestrians entered the United States through our ports of
entry along our southern border with Mexico. We do not maintain similar
statistics for vehicles and pedestrians entering the United States from
Canada. The high volume of travelers and shoppers crossing our land
borders is not a new phenomenon, but has existed for decades now, due
in part to the cultural and economic ties that have developed along our
borders with Mexico and Canada. It has been a long-standing practice
for a number of shoppers and travelers to bring agricultural goods with
them when crossing the border. For example, based on a sample of 52,982
vehicles and 31,553 pedestrians entering the United States from Mexico
in FY 2000, we found that approximately 7 percent of the vehicles
sampled and 8 percent of the pedestrians sampled carried some type of
plant article. (This data does not include passengers on buses.)
Applying these percentages to the total number of vehicles and
pedestrians entering the
[[Page 45642]]
United States from Mexico, we estimate that approximately 6.5 million
vehicles and 4.1 million pedestrians would have carried some type of
plant article. Although we do not maintain data on the types of plant
articles brought in by vehicles and pedestrians, we know from
experience that most of the plant articles would be fruits or
vegetables.
We have found that the pest risk factors discussed earlier with
regard to imported produce brought into the United States by
international travelers from around the world are not as applicable in
the case of shoppers and travelers bringing in produce through our land
border ports of entry. Fruits and vegetables that shoppers and
travelers carry in through our land ports along the Mexican and
Canadian borders tend to be purchased and consumed in the vicinity of
the border area. For instance, it is common for U.S. residents living
along the Mexican border to purchase produce in Mexico for local
consumption in the United States. These groceries are referred to
locally as ``mandado.'' The purchase of mandado represents a long-
standing tradition and is symbolic of the culturally-blended society
and economy that exists along the United States-Mexican border. A
somewhat similar situation occurs along the Canadian border, although
there is less traffic of this sort from Canada. The purchase and
consumption of produce within the general area of the border is not as
great a concern since land areas on either side of the border generally
share common plant pests, so the risk of introducing new or not widely
prevalent plant pests is minimal.
Based on our many years' experience in inspecting vehicle and
pedestrian traffic along the Mexican and Canadian borders, we and our
FIS partners have become familiar with the long-standing practices of
shoppers and travelers bringing in agricultural items. We are also
quite knowledgeable in the types and varieties of fruits and vegetables
grown in Mexico and Canada. When inspecting plant articles at land
ports, we can act with a greater degree of certainty in determining the
general origin of the article without the need of certification, such
as whether the article was produced near the border area, or in a
location in the interior of Mexico or Canada, or somewhere outside
Mexico or Canada. We also have greater flexibility in not being subject
to the strict time standards that govern inspection of commercial cargo
and airport baggage. Therefore, we believe that the existing system of
inspection at our land ports provides sufficient protection against the
introduction of plant pests in produce carried in by individuals for
personal use without the need of requiring phytosanitary certification.
We are proposing that the exemption from phytosanitary
certification would apply only to shoppers and travelers entering the
United States through our land ports of entry, and would not be
extended to travelers arriving in the United States by plane or boat
from Mexico or Canada. There are several reasons for doing this. First,
there is a greater potential that these air or boat passengers may have
also traveled in areas outside of Mexico or Canada. There is also a
greater potential that produce brought into the United States by these
passengers may be carried to more distant points from the border that
do not necessarily share some of the plant pests common in our land
areas along the Mexican or Canadian borders.
We would also not extend this exemption from phytosanitary
certification to commercial shipments arriving from Mexico and Canada.
We believe that phytosanitary certificates are necessary in the case of
commercial shipments from Mexico and Canada in order to mitigate the
plant pest risks associated with container shipments and to address the
practice of commercial shipments moving through more than one country
prior to arrival in the United States.
Certification as a Risk Mitigation Tool
Given the likelihood of continued growth in commercial and
noncommercial shipments of produce and the imperative to clear
commercial cargo and international travelers in a timely, efficient
manner, it is difficult to foresee how the current system, which relies
primarily on port of entry inspection, can keep pace with the increased
flow of imported produce without greater use of offshore mitigation
measures to augment existing detection efforts.
The required use of phytosanitary certificates should greatly
curtail the quantity of high-risk imports by travelers. For commercial
shipments, the phytosanitary certificate would document the origin of
each shipment and ensure inspection in the country of origin by a
member of the foreign plant protection organization, helping to ensure
shipment of clean commodities.
In our view, greater use and reliance on phytosanitary
certificates, by both the United States and other countries, is the
wave of the future. While port of entry inspection must continue to
play an important role, the historic view that this activity can
function as the focal point for exclusion must be augmented by greater
emphasis on other viable approaches, including detection, compliance,
and mitigation of pest risks in the country of origin. A risk
management strategy that emphasizes the increased use of phytosanitary
certificates and other offshore mitigation measures, along with
continued inspection activities at the port of entry should, in the
long run, allow for expedited entry of commercial cargo and passengers
while providing the necessary level of quarantine security.
Proposed Changes to Part 319
In Sec. 319.56-1, we propose to amend the definition of commercial
shipment and add definitions for the terms noncommercial shipment and
phytosanitary certificate.
Commercial shipment is defined in the regulations as ``a shipment
containing fruits and vegetables that an inspector identifies as having
been produced for sale and distribution in mass markets. Such
identification will be based on a variety of indicators, including, but
not limited to: quantity of produce, type of packaging, identification
of grower or packing house on the packaging, and documents consigning
the shipment to a wholesaler or retailer.'' We would amend the
definition of commercial shipment by revising the phrase ``fruits and
vegetables'' in the first sentence to read ``fruits or vegetables.'' We
would make this change to be consistent with APHIS inspection policy.
We consider a commercial shipment, for purposes of inspection and
treatment, to consist of a particular type of fruit or vegetable as
opposed to a commingled lot of fruits and vegetables. So if two types
of produce enter the United States at the same time as part of a single
consignment, we would consider that to be two shipments. We identify
commercial shipments on a commodity basis in most circumstances since
our regulations for inspection and treatment are based on the pest
risks associated with specific fruits or vegetables. In the first
sentence, we would also replace the word ``imported'' with the word
``produced.'' While an article may have been ``produced'' for sale in
the country of origin, it loses its commercial character if brought to
this country by an individual for personal use. Inspectors identify a
shipment to be commercial based on whether it is subject to sale and
distribution at the time it is ``imported'' into the United States.
Also, we would delete the words ``mass markets'' as used in the phrase
``for sale and distribution in mass markets.'' The key factor in
identifying a shipment as commercial is whether it
[[Page 45643]]
is produced for sale and distribution, and not whether distribution
occurs in a mass market.
We would define noncommercial shipment as ``a shipment containing
fruits or vegetables that an inspector identifies as having been
imported for personal use and not for sale.''
We would define phytosanitary certificate as ``a document,
including electronic versions, that is related to a fruit or vegetable
shipment and that: (1) Is patterned after the model certificate of the
International Plant Protection Convention (IPPC), a multilateral
convention on plant protection under the authority of the Food and
Agriculture Organization of the United Nations; (2) is issued by an
official of a foreign national plant protection organization; (3) is
addressed to the plant protection service of the United States (Animal
and Plant Health Inspection Service); (4) describes the shipment; (5)
certifies the place of origin for all contents of the shipment; (6)
certifies that the shipment has been inspected and/or tested according
to appropriate official procedures and is considered to be free from
quarantine pests of the United States; and (7) contains any additional
declarations required under this subpart.''
We propose to amend the regulations at Sec. 319.56-2(a) by
providing that a phytosanitary certificate must accompany all
commercial and noncommercial shipments of fruits and vegetables
imported into the United States, except for fruits and vegetables that
are dried, cured, processed, or frozen, and noncommercial shipments of
fruits and vegetables brought into the United States through land ports
of entry located along U.S. borders with Canada and Mexico.
We propose to amend paragraphs (b) through (d) of Sec. 319.56-2,
which cover the entry of fruits and vegetables under particular
situations or from particular countries, to reflect the appropriate
application of the new phytosanitary certificate requirement. Under
Sec. 319.56-2(b), dried, cured, and processed fruits and vegetables
would not require a phytosanitary certificate unless APHIS determines
that the drying, curing, or processing to which the fruits or
vegetables have been subjected has not eliminated the pest risk. We
would amend Secs. 319.56-2(c) and (d) to reflect the applicability of
the phytosanitary certificate requirement to fruits and vegetables from
Canada and to fruits and vegetables imported into the U.S. Virgin
Islands from the British Virgin Islands. We would also make a technical
correction to Sec. 319.37-2(c), for purposes of syntax and clarity, by
substituting the words ``may not be imported'' in place of ``are
prohibited importation.'' We would also move the phrase ``in accordance
with Sec. 319.37-2 of this part'' to appear earlier in the sentence.
Section 319.56-6 covers inspection and other requirements at the
port of first arrival. We propose to amend paragraph (c) of this
section to cite APHIS' authority to refuse entry of imported fruits and
vegetables if not accompanied by a phytosanitary certificate, when
required.
We would leave unchanged those sections of the regulations that
already require a phytosanitary certificate to accompany specified
fruits and vegetables from particular regions. These sections require
specific declarations to appear on the phytosanitary certificates and
would remain in effect.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
This rule has been determined to be significant for the purposes of
Executive Order 12866 and, therefore, has been reviewed by the Office
of Management and Budget.
Below is an economic analysis for the proposed rule to require that
all fruits and vegetables imported into the United States be
accompanied by a phytosanitary certificate, with certain exceptions.
The economic analysis provides a cost-benefit analysis as required by
Executive Order 12866 and an analysis of the potential economic effects
on small entities as required by the Regulatory Flexibility Act.
We do not have enough data for a comprehensive analysis of the
economic effects of this proposed rule on small entities. Therefore, in
accordance with 5 U.S.C. 603, we have performed an initial regulatory
flexibility analysis for this proposed rule. We are inviting comments
about this proposed rule as it relates to small entities. In
particular, we are interested in determining the number and kind of
small entities that may incur benefits or costs from implementation of
this proposed rule, including the cost of procuring a phytosanitary
certificate from other countries, any other administrative and
logistical costs that might be incurred in procuring these
certificates, and any costs associated with inspection.
Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary
of Agriculture is authorized to prohibit or restrict the importation
and entry into the United States of any plant and plant products,
including fruits and vegetables, to prevent the introduction of plant
pests or noxious weeds into the United States.
This proposed rule would require that all fruits and vegetables
imported into the United States be accompanied by a phytosanitary
certificate, with certain exceptions. We would exempt fruits and
vegetables that are dried, cured, frozen, or processed, as well as
noncommercial shipments of fruits and vegetables brought into the
United States through land ports of entry located along the Canadian
and Mexican borders. The United States does not currently require a
phytosanitary certificate for the importation of fruits and vegetables,
except in specific instances as detailed in the regulations.
This proposed rule has been prompted by the need for offshore pest
mitigation measures to augment port of entry inspection efforts in
response to the explosive growth in the number of and variety of
commercial fruit and vegetable imports coming into this country as well
as the increased number of travelers entering the United States from
foreign countries. The primary alternative to this proposed rule would
be to continue increasing our staffing and resources at port of entry
inspection facilities. We could adjust our user fees to help offset any
additional costs associated with this effort. APHIS has tried to
address the plant pest threat over the past decade through increased
staffing at the inspection site. We have also implemented new programs
and technologies such as the deployment of detector dogs and the use of
x-ray equipment at certain ports. Despite these efforts, however, the
large amount of prohibited material passing through port of entry
inspection undeclared and undetected persists.
We have also considered the potential benefits of including
additional questions on the U.S. Customs form that travelers complete
prior to entry into the United States relating to any plant articles
they are carrying with them. We have explored this possibility with
U.S. Customs since it is their form and is designed primarily to meet
the needs of U.S. Customs. However, even if travelers could provide
additional information, such as where the article was purchased, in
many cases it would not provide us with definitive data as to where and
under what conditions the plant article was produced.
It is apparent that even with additional staffing and other
measures, what can be done at the inspection site is limited,
particularly if cargo and passengers are to be inspected and released
in a timely manner. As noted in the 1999 report, ``Safeguarding
American Plant Resources, A
[[Page 45644]]
Stakeholder Review of the APHIS-PPQ Safeguarding System'' (Safeguarding
Report),\2\ we must more vigorously pursue offshore mitigation measures
that augment our port of entry inspection efforts.
---------------------------------------------------------------------------
\2\ The Safeguarding Report is available upon written request
from the person listed under FOR FURTHER INFORMATION CONTACT. It is
also available on the Internet at http://www.aphis.usda.gov/ppq/
safeguarding.
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Offshore mitigation has several important advantages. By conducting
inspections at the point of origin, pests can be intercepted before
they enter the country instead of at U.S. ports. Additionally,
inspection at the point of origin is often more efficient and effective
as it allows for inspecting cargo before it is packed for shipment
rather than having to unpack and repack the shipment for inspection
upon arrival at the country of destination. We already require
phytosanitary certificates for selected fruits and vegetables exported
to the United States from other countries. We are also working with
countries seeking to establish preclearance programs for the inspection
of a number of commodities. Right now we have APHIS personnel stationed
abroad managing permanent preclearance programs for fruits, vegetables,
and flower bulbs destined for the United States from Mexico, Chile, and
The Netherlands as well as air passenger preclearance programs in
Aruba, The Bahamas, Bermuda, and Canada.
We considered requiring phytosanitary certificates only for
commercial shipments of fruits or vegetables. We did not propose this
alternative because the risks posed by imported fruits and vegetables
are not limited to commercial shipments. We also considered prohibiting
the importation of unprocessed food and plant products by the traveling
public as recommended in the Safeguarding Report. A total prohibition
on these items would ease enforcement and reduce the entry of potential
host material carrying harmful pests. However, we have opted for a less
restrictive measure of allowing the continued importation of produce by
the traveling public, with a phytosanitary certificate except as
explained below for produce from Mexico and Canada. We recognize that
it may be difficult for travelers to obtain a phytosanitary certificate
in a number of countries, particularly during the initial years this
rule is in effect if it is adopted. However, we expect that, if this
proposal is implemented, a number of countries will develop or improve
their facilities and services for issuing certificates to travelers and
shoppers as is done for commercial importers.
We are exempting from the phytosanitary certificate requirement
fruits and vegetables brought into the United States by travelers and
shoppers for personal use through land ports of entry along the
Canadian and Mexican borders. We believe the continued use of screening
and inspection for noncommercial shipments crossing the Canadian and
Mexican borders provides a sufficient safeguard.
The growth in the number and variety of commercial shipments as
well as the increased number of travelers to the United States has
significantly increased the risk of pest introduction. Establishment of
foreign plant pests can have a significant economic effect on the
United States. Not only do these pests have the potential to cause
economic harm to agricultural producers, but subsequent APHIS
monitoring and eradication programs can be quite costly.
APHIS programs to control Mediterranean fruit fly (Medfly) and
Mexican fruit fly serve as examples in illustrating the potential
costs. These particular pests can enter the United States through both
commercial cargo shipments and passenger baggage. APHIS studies of the
Medfly and Mexican fruit fly have shown the potential for significant
economic harm should these pests become established in the United
States. A recent APHIS study \3\ of the ongoing Texas Valley Mexican
Fruit Fly Protocol estimates total costs of between $888 million and
$928 million annually if the Mexican fruit fly becomes established
throughout its possible range in the United States. These costs take
into account additional pest control and treatment for fruit production
in California and Florida as well as for projected crop losses. There
would also be trade losses due to export prohibitions, as well as
quarantine treatment costs, as other countries react to protect
themselves from the pest risk associated with the affected produce. The
Medfly program in Florida \4\ provides a similar example. The total
economic effect of Medfly establishment in Florida has been estimated
at $308 million annually. This includes costs for pest control and
treatment of fruit, as well as projected crop losses.
---------------------------------------------------------------------------
\3\ APHIS, Policy & Program Development, Policy Analysis and
Development, ``Economic Analysis of Options for Eradicating Mexican
fruit fly (Anastrepha ludens) from the Lower Rio Grande Valley of
Texas,'' March, 2000.
\4\ APHIS, Policy & Program Development, Policy Analysis and
Development, ``Economic Assessment of Options for the Medfly
Cooperative Program in Florida,'' February, 1998.
---------------------------------------------------------------------------
Both of these existing programs illustrate the potential costs of
new foreign plant pests entering and becoming established in this
country and represent the types of programs and costs that we hope to
be able to avoid in the future, in part through this rule.
This proposed rule would primarily affect two major groups. The
first group would be U.S. firms that import fruits and vegetables into
the United States. Import brokers who work with these firms would also
be affected by the new certification requirements. The second group
would be travelers who carry fruits and vegetables into the United
States from foreign countries for their own personal use. Based on our
initial analysis, it appears that the economic effect of this proposed
rule for both U.S. importers and travelers is likely to be small.
In 1999, the total value of fruits and vegetables imported into the
United States was $4.74 billion. Most of these imports came from Mexico
(40 percent), with the rest from Chile (10.5 percent), Costa Rica (10.1
percent), Canada (8.5 percent) and Ecuador (7 percent). The regulations
currently require phytosanitary certification only in specific
instances. In 1999, shipments requiring certification accounted for
$547.6 million or 11.6 percent of total fruit and vegetable imports.
The extent to which phytosanitary certification is required varies from
country to country. Of the top five sources of fruits and vegetables
listed above, 95.5 percent of Chile's exports to the United States
(based on value) require a phytosanitary certificate, whereas only 1
percent of Mexico's exports to the United States require certification.
U.S. Importers
Based on the number of import permits APHIS issues, we expect that
between 800 and 1000 firms would be affected by this proposed rule if
it is adopted. Requiring a phytosanitary certificate for all commercial
shipments of fruits and vegetables imported into the United States
would mean that U.S. importers would have to get the certificate from
the government of the country where the goods originated. Typically,
this would involve an inspection by the foreign government,
certification of where in the country of origin the fruits or
vegetables were grown, and a statement that the shipment or shipments
are free from plant pests of quarantine significance.
Our proposal would represent a significant administrative change
for many importers, especially those
[[Page 45645]]
importing from countries from which we do not typically require
phytosanitary certificates, such as Canada. The additional paperwork
and inspection burden may result in additional costs to importers who
find it necessary to restructure their operations to meet the new
requirements. We do not expect these costs to be significant.
Foreign national plant protection organizations that issue
phytosanitary certificates usually charge a fee for their services. The
fee is typically quite small in comparison to the value of the
commercial shipment. The value of commercial shipments of fruits and
vegetables can vary widely, from a few thousand dollars to over
$100,000. The size and value of a shipment will depend on the type of
goods, the origin of the goods, the transportation method used, and
other factors. The majority of commercial fruit and vegetable shipments
appear to range between $5,000 and $20,000 in value, based on data from
APHIS and the Census Bureau of the U.S. Department of Commerce. In
contrast, the fee that is charged for a phytosanitary certificate and
inspection is comparatively small. The actual fee varies from country
to country and is based solely on the criteria that the issuing country
deems appropriate. As points of reference for most shipments, Canada
charges C$17 Canadian dollars ($10.75US) and Mexico charges 244 Mexican
new pesos ($24.50US). The structure of the costs upon which the fee is
based also varies from country to country. Spain does not charge a fee
if a phytosanitary certificate is required by the importing country. If
a certificate is not required, Spain charges 0.0525 percent of the
customs value of the shipment, with a minimum of 795 pesetas ($4.57US).
The Netherlands charges for the time required to conduct the
inspection. This includes an initial fee of 48.50 Dutch guilders plus
31.50 Dutch guilders for each 15 minutes. A typical inspection of 15 to
30 minutes would cost between 80 to 111.50 Dutch guilders ($34.72 to
$48.39US). APHIS charges $50 for commercial shipments valued at over
$1,250.
The cost of obtaining a certificate in comparison to the average
value of a commercial fruit and vegetable shipment can be illustrated
in the following example involving Canada. The Canadian government
charges C$17 for shipments valued above C$1,600, and C$7 for lesser
valued shipments. For the higher valued shipments, this would mean a
maximum cost of approximately 1 percent of the value of the shipment.
For smaller shipments, the certification cost as a percentage of the
shipment's value might be higher, but not significantly. For a shipment
valued at C$500, the certification cost would be 1.4 percent of the
value of the shipment. Since commercial shipments are usually valued
much higher than C$1,600, the fee charged for obtaining the certificate
would likely be a minor expense. Consequently, based on our initial
analysis, this proposed rule would only marginally increase the costs
to importers.
A detailed analysis of the cumulative costs of phytosanitary
certification in relation to the number of shipments or the value of a
shipment is not possible at this time because certain critical
information is unavailable, and is to our knowledge not collected. For
example, we do not collect data that show the quantitative relationship
between the number of shipments entering the United States and the
number of phytosanitary certificates issued for those shipments. There
may be one or more phytosanitary certificates attached to a single
shipment, or conversely, one phytosanitary certificate may apply to
several shipments. Without data showing the relationship between
shipments and certificates, it becomes difficult to speak in a formal
way about the potential added costs due to phytosanitary certification.
As such, we are inviting comments that address this issue. However, we
have made some estimation of the additional costs of this proposal
based on what information we have coupled with our experience in
inspecting shipments of fruit and vegetables at land, air, and sea
ports of entry. We have strived to be conservative in our estimates so
as to not underestimate the cumulative cost.
Our records show that 662,549 commercial shipments of fruits and
vegetables entered the United States in 2000. In this specific context,
we consider a commercial shipment to consist of a particular type of
fruit or vegetable. So, if two types of produce enter the United States
at the same time as part of a single consignment, we would consider
that to be two shipments. Out of the total of 662,549 commercial
shipments in 2000, 77,682 shipments were received at U.S. maritime
ports of entry; 99,316 shipments were received at ports of entry
located at U.S. airports; and 485,551 shipments were received at U.S.
land ports of entry located along the Canadian and Mexican borders.
This information covers FY 2000, with the exception of shipments
entering U.S. land ports from Canada, which is based on data covering
calendar year 2000. Although we do not maintain data on the number of
phytosanitary certificates that accompanied these commercial shipments,
for purposes of this analysis, we are estimating a 1 to 1 ratio (i.e.,
one phytosanitary certificate per shipment) for commercial shipments
that arrived at our maritime ports, and a 1 to 3 ratio (i.e., one
phytosanitary certificate per 3 shipments) in the case of commercial
shipments that arrived at our air and land ports. We are estimating a 1
to 1 ratio in the case of maritime cargo because such shipments almost
always arrive as one intact load of a particular commodity. We are
estimating a 1 to 3 ratio for commercial shipments arriving at our air
and land ports since it is quite common for a single consignment of
produce arriving by land or air to consist of commingled lots of more
than one type of produce, resulting in multiple shipments per
consignment. In these situations, one phytosanitary certificate could
be issued to cover all of the shipments in the consignment. We are
estimating here that one phytosanitary certificate would typically
cover 3 commercial shipments that arrive at our air or land ports. We
invite you to comment on these estimated ratios.
Based on an 1 to 1 ratio for maritime shipments, we estimate that
total maritime shipments of 77,682 in 2000 would have been accompanied
by an estimated 77,682 phytosanitary certificates. Using the ratio of 1
to 3 for air and land shipments, the 99,316 shipments arriving by air
would have been accompanied by a total of 33,105 phytosanitary
certificates, while the 485,551 shipments coming through our land ports
would have been accompanied by a total of 161,850 phytosanitary
certificates. So we estimate that total fruit and vegetable shipments
of 662,549 in 2000 would have required the issuance of 272,637
certificates if this proposed rule were implemented. If we use the cost
of a phytosanitary certificate issued by APHIS (i.e., $50), the total
cost of requiring phytosanitary certificates for commercial shipments
of fruits and vegetables would be approximately $13.6 million (272,637
certificates x $50). Note that this total dollar amount includes the
cost of certificates that we already require for certain fruits and
vegetables under our regulations. Also, the $50 figure charged by APHIS
is generally higher than the fees charged by other countries as
discussed above.
In addition to the actual fee for obtaining a phytosanitary
certificate, there could be costs associated with the additional time
and disruption in having the shipment or shipments inspected and
certified in the exporting country. Delays in having the shipments
[[Page 45646]]
inspected could result in further costs. We collect no data on these
potential costs and are therefore inviting your comments that address
this issue.
The other potential area where costs could be incurred is through
the added paperwork and administrative burdens associated with finding
the appropriate officials in foreign countries to issue the
certificates and learning what the appropriate procedures are for each
country. There are two main reasons why we do not expect that this will
be a major issue for most importing firms.
First, it may be difficult to find the appropriate officials in
some countries to conduct the inspections and issue the phytosanitary
certificates. However, we are proposing that any final rule would not
go into effect until 6 months after publication in the Federal
Register. This advance notice should give affected parties sufficient
time to contact the plant protection agencies in the countries that
they are importing from and learn the procedures for procuring a
certificate. Furthermore, phytosanitary certificates are governed under
the International Plant Protection Convention (IPPC), a multilateral
treaty under the auspices of the United Nations Food and Agriculture
Secretariat. This treaty has over 100 countries as signatories.
Signatories to the IPPC agree that pest risk mitigation is the
responsibility of the exporting country, and that they are willing and
able to issue phytosanitary certificates. We expect any logistical or
administrative difficulties associated with discovering the
requirements for obtaining a phytosanitary certificate in specific
countries to be short term in most cases, and should be resolved within
the 6 month time window before the final rule goes into effect.
The second issue is that many firms use import brokers in order to
facilitate the movement of their shipments into the United States. The
broker's primary role is to make arrangements and get appropriate
documentation for the import and export of goods. Firms that hire
brokers will likely be able to avoid the added burden of phytosanitary
certification since this task would fall within the purview of the
broker. The certification burden as it applies to brokers is less an
issue, since this task would fall within the broker's existing role of
obtaining necessary documentation in order to expedite the movement of
goods on behalf of clients.
Essentially, these new administrative burdens are not expected to
have a major impact because there should be sufficient time to adapt to
the requirements before they go into effect. In addition, many import
firms will continue to rely on a broker to handle these issues for
them.
Small Entities
We do not have enough information to fully evaluate the potential
effect of this proposed rule on small entities. As such, we are
inviting comments addressing this issue. In particular, we are
interested in determining the number and kinds of small entities that
may incur benefits or costs from implementation of this proposed rule,
and if there are any special issues relating to the business practices
of these small entities that would make them particularly different
from larger firms in their ability to comply with this proposed rule.
However, we have made some initial conclusions.
Relevant small entities would include small U.S. wholesalers who
import fruits and vegetables from foreign countries. The Small Business
Administration defines a small wholesaler of fresh fruits and
vegetables as one having less than 100 employees. While smaller firms
are likely to import smaller quantities than larger firms, the cost of
a phytosanitary certificate likely represents less than 1 percent of
the value of a commercially viable shipment, and as such this issue
should not constitute a major impact.
Smaller firms would have to deal with the same new administrative
burdens as other larger firms. If these smaller firms choose to employ
an import broker, then they should be able to avoid any potential
problems by relying on the broker. If they choose not to employ a
broker, the firm will have to discover the requirements for obtaining a
phytosanitary certificate and adjust its procedures accordingly.
Smaller firms are likely to import only from a few countries and, thus,
will not have to learn the requirements for many countries.
Additionally, the 6 month period before the final rule would take
effect should allow sufficient time to adjust operations as necessary.
We expect any problems that are created in complying with this rule, if
implemented, to be short term in nature. As such, based on our initial
analysis, the economic effects on these entities should not be
significant.
Travelers to the United States From Foreign Countries
Travelers to the United States from foreign countries often bring
fruits and vegetables with them in baggage for personal use. Under the
proposed rule, travelers would need to obtain a phytosanitary
certificate in the country of origin for any fruits and vegetables they
bring into the United States for personal use. An exception to this
requirement would apply to travelers coming through land ports along
the Canadian or Mexican borders.
It would likely be difficult for individual travelers to obtain a
phytosanitary certificate in a number of countries, particularly during
the initial years this rule is in effect, if it is adopted.
Phytosanitary certificates are required to include detailed information
about where the fruit or vegetable was grown and where and how it was
treated. This kind of information would not likely be readily available
to an individual who purchased the produce at a market in a foreign
country. Unless a foreign government establishes a special program to
facilitate issuance of certificates to the traveling public, most
travelers would not know how to obtain a phytosanitary certificate from
a foreign government even if they did elect to pay the charge.
The typical fees charged by issuing countries may be prohibitively
expensive for travelers. The cost of obtaining a phytosanitary
certificate can vary substantially, from no charge to over $50, based
on our initial analysis. While these charges would be inconsequential
for a commercial shipper, they could be greater than the value of
material typically brought in by travelers. APHIS will issue
phytosanitary certificates to travelers leaving the United States on
request at the noncommercial rate of $23. While a few travelers do make
use of this service, it is a fairly rare occurrence as it is typically
not worthwhile for travelers.
We have taken into account the possibility that some travelers may
consider not obtaining a phytosanitary certificate and attempt to bring
in fruits and vegetables without declaring them. However, we believe
few people would take this risk. Persons who fail to declare a
prohibited item can be fined in addition to having the item
confiscated.
In estimating the total cost of this proposed rule on travelers, we
know that in FY 1999 approximately 60.8 million international air
travelers arrived in the United States, and that approximately 5.2
million (or 8.6 percent) of these air travelers arrived with a plant
item. Although we do not maintain data on the types of plant items
brought in by air passengers, we know from experience that most of
these articles would have been fruits or vegetables. We believe that
once the phytosanitary certification requirement is in place, the vast
majority of international travelers arriving in the United States would
forego bringing in
[[Page 45647]]
the typically small amount of fruit and vegetable items for personal
consumption since the cost or inconvenience in getting the certificate
would not make it worthwhile. For purposes of illustration, assuming 10
percent (or 520,000) of the estimated 5.2 million passengers that
brought in a plant item in FY 1999 decided to obtain a phytosanitary
certificate, the estimated total cost of certification to these
travelers would be approximately $11.9 million. This estimation is
based on using the cost for issuing a noncommercial certificate in the
United States (i.e., $23), which we believe to be representative of
what other countries would charge for this service. Once again, we are
inviting your comments that address this issue.
Consequently, this proposed rule would make it more difficult for
travelers to carry fruits and vegetables into the United States for
personal use. The availability of the required information, as well as
the cost, will vary from country to country. In many cases, this
proposed rule could prevent individuals from carrying fruits and
vegetables with them when traveling to the United States. This could
mean a small economic loss to all of these travelers, but we believe
most travelers affected will view this change more as an inconvenience,
since they may not be able to bring in certain favorite food items.
It is worth noting that there are some countries where it is common
for travelers and tourists to bring back specific specialty fruits and
vegetables. We do not expect that the proposed rule will have a
significant effect on this type of item. In these cases, a market
specifically directed at travelers and tourists exists. In order to
protect this market, the country exporting the specialty item will
likely set up a program to inspect and certify the items for travelers
in an efficient and cost effective way. This may be in the form of pre-
certified products being sold at airports or some other similar
program. This market incentive would lessen the effect of the proposed
rule in places where these specialty items exist.
We expect any costs to U.S. importers and travelers to be more than
offset by the added safeguarding of U.S. agriculture, the environment,
and the economy against the introduction and dissemination of invasive
plant pests, which cause economic harm to the United States in the
billions of dollars annually. The required use of phytosanitary
certificates should greatly reduce the quantity of high-risk baggage
imports. It will also provide the additional security of foreign
inspection for commercial shipments at the place of origin. We also
believe that, in the long run, as use of phytosanitary certification
gains further acceptance and credibility, this measure will allow for
more expedited entry of commercial cargo and travelers from abroad,
while maintaining the necessary level of quarantine security against
the introduction and dissemination of invasive pests.
This proposed rule would also entail information collection
requirements. These requirements are described in this document under
the heading ``Paperwork Reduction Act.''
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. 00-014-1.
Please send a copy of your comments to: (1) Docket No. 00-014-1,
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 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.
We are proposing to amend our regulations to require that a
phytosanitary certificate accompany all fruits and vegetables imported
into the United States, with certain exceptions.
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
(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 15 minutes per response.
Respondents: Plant health officials employed by the national
governments of countries that export fruits and vegetables to the
United States.
Estimated annual number of respondents: 4,000.
Estimated annual number of responses per respondent: 25.
Estimated annual number of responses: 100,000.
Estimated total annual burden on respondents: 25,000 hours.
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock,
Plant diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
Accordingly, we propose to amend 7 CFR part 319 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. 166, 450, 7711-7714, 7718, 7731, 7732, and
7751-7754; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. In Sec. 319.56-1, the definition of commercial shipment would be
revised and new definitions would be added, in alphabetical order, for
noncommercial shipment and phytosanitary certificate to read as
follows:
Sec. 319.56-1 Definitions.
* * * * *
Commercial shipment. A shipment containing fruits or vegetables
that an inspector identifies as having been imported for sale and
distribution. Such
[[Page 45648]]
identification will be based on a variety of indicators, including, but
not limited to: Quantity of produce, type of packaging, identification
of grower or packing house on the packaging, and documents consigning
the shipment to a wholesaler or retailer.
* * * * *
Noncommercial shipment. A shipment containing fruits or vegetables
that an inspector identifies as having been imported for personal use
and not for sale.
* * * * *
Phytosanitary certificate. A document, including electronic
versions, that is related to a fruit or vegetable shipment and that:
(1) Is patterned after the model certificate of the International
Plant Protection Convention (IPPC), a multilateral convention on plant
protection under the authority of the Food and Agriculture Organization
of the United Nations;
(2) Is issued by an official of a foreign national plant protection
organization;
(3) Is addressed to the plant protection service of the United
States (Animal and Plant Health Inspection Service);
(4) Describes the shipment;
(5) Certifies the place of origin for all contents of the shipment;
(6) Certifies that the shipment has been inspected and/or tested
according to appropriate official procedures and is considered to be
free from quarantine pests of the United States; and
(7) Contains any additional declarations required under this
subpart.
* * * * *
3. In Sec. 319.56-2, paragraphs (a), (b), (c), and (d) would be
revised to read as follows:
Sec. 319.56-2 Restrictions on entry of fruits and vegetables.
(a) To be eligible for entry into the United States:
(1) All fruits and vegetables imported under this subpart, whether
commercial or noncommercial shipments, must be free from plants or
portions of plants, as defined in Sec. 319.56-1; and
(2) All fruits and vegetables imported under this subpart, whether
commercial or noncommercial shipments, must be accompanied by a
phytosanitary certificate, except for:
(i) Fruits and vegetables that are dried, cured, or processed as
provided in paragraph (b) of this section;
(ii) Frozen fruits and vegetables as provided in Sec. 319.56-2c of
this subpart; or
(iii) Noncommercial shipments brought in from Canada or Mexico
through land border ports.
(b) Dried, cured, or processed fruits and vegetables (except frozen
fruits and vegetables), including cured figs and dates, raisins, nuts,
and dried beans and peas, may be imported without permit, phytosanitary
certificate, or other compliance with this subpart. However, a permit,
a phytosanitary certificate, and other safeguards may be required for
any such articles when the Deputy Administrator determines that the
drying, curing, or processing to which the fruits or vegetables have
been subjected does not entirely eliminate pest risk. Such
determination with respect to any such articles will become effective
after due notice.
(c) Except as provided in paragraph (a) of this section, fruits and
vegetables grown in Canada may be imported into the United States
without further restriction under this subpart, Provided, that, in
accordance with Sec. 319.37-2 of this part, potatoes from Newfoundland
and that portion of the Municipality of Central Saanich in the Province
of British Columbia east of the West Saanich Road may not be imported
into the United States.
(d) Except as provided in paragraph (a) of this section and
Secs. 319.56-5, 319.56-6, and 319.56-7, fruits and vegetables grown in
the British Virgin Islands may be imported into the U.S. Virgin Islands
without further permit or restriction other than the authorization
contained in this paragraph. However, such fruits and vegetables are
exempted from the notice of arrival requirements of Sec. 319.56-5 only
when an inspector finds that equivalent information is obtainable from
the U.S. Collector of Customs.
* * * * *
4. In Sec. 319.56-6, paragraph (c) would be revised to read as
follows:
Sec. 319.56-6 Inspection and other requirements at the port of first
arrival.
* * * * *
(c) Refusal of entry. If an inspector finds that an imported fruit
or vegetable is prohibited, or is not accompanied by proper
documentation such as a phytosanitary certificate, or is so infested
with a plant pest that, in the judgment of the inspector, it cannot be
cleaned or treated, or contains soil or other prohibited contaminants,
the entire lot may be refused entry into the United States.
* * * * *
Done in Washington, DC, this 23rd day of August 2001.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 01-21809 Filed 8-28-01; 8:45 am]
BILLING CODE 3410-34-P
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