[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51208-51210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25100]



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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 94-102-3]


Importation of Fruit Trees From France

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are allowing Chaenomeles spp., Cydonia spp., Malus spp., 
Pyrus spp., and certain Prunus spp. plants (except seeds) to be 
imported into the United States as restricted articles, if grown in 
private nurseries in France and certified by the French plant 
protection service to be free of various diseases. This action relieves 
restrictions on the importation of these articles from France without 
presenting a significant risk of introducing plant pests (including 
diseases) into the United States.
    We are also removing Laredo, TX, from the list of ports equipped 
with plant inspection stations.

EFFECTIVE DATE: October 31, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. James Petit de Mange or Mr. Peter 
Grosser, Operations Officers, Port Operations, PPQ, APHIS, 4700 River 
Road Unit 139, Riverdale, MD, 20737-1236, (301) 734-8645.

SUPPLEMENTARY INFORMATION:

Background

    The Plant Quarantine Act (7 U.S.C. 151 et seq.) and the Federal 
Plant Pest Act (7 U.S.C. 150aa et seq.) authorize the Animal and Plant 
Health Inspection Service (APHIS) to prohibit or restrict the 
importation into the United States of any plants, roots, bulbs, seeds, 
or other plant products in order to prevent the introduction of plant 
pests (including diseases) into the United States.
    Regulations promulgated under this authority, among others, include 
7 CFR 319.37 through 319.37-14, ``Subpart--Nursery Stock, Plants, 
Roots, Bulbs, Seeds, and Other Plant Products'' (referred to below as 
the regulations). These regulations govern the importation of living 
plants, plant parts, and seeds for or capable of propagation, and 
related articles. The regulations prohibit or restrict the importation 
of most plants, roots, bulbs, seeds, and other plant products. These 
articles are classified as either ``prohibited articles'' or 
``restricted articles.''
    A prohibited article is an article that the Deputy Administrator 
for Plant Protection and Quarantine (PPQ), APHIS, has determined cannot 
feasibly be inspected, treated, or handled to prevent it from 
introducing plant pests new to or not widely prevalent or distributed 
within and throughout the United States. Prohibited articles may not be 
imported into the United States, unless imported by the United States 
Department of Agriculture (USDA) for experimental or scientific 
purposes under specified safeguards.
    A restricted article is an article that the Deputy Administrator 
for PPQ has determined can be inspected, treated, or handled to 
essentially eliminate the risk of its spreading plant pests if imported 
into the United States. Restricted articles may be imported into the 
United States if they are imported in compliance with restrictions that 
may include permit and phytosanitary certificate requirements, 
inspection, treatment, or postentry quarantine.
    On March 13, 1995, we published in the Federal Register (60 FR 
13382-13384, Docket No. 94-102-1) a proposed rule to amend Sec. 319.37-
5(b) of the regulations to allow Chaenomeles spp., Cydonia spp., Malus 
spp., Pyrus spp., and certain Prunus spp. grown in private nurseries in 
France to be imported into the United States as restricted articles 
under the same conditions specified in the regulations for those same 
articles when grown in government nurseries in France. All of these 
restricted articles must be accompanied by a phytosanitary certificate 
of inspection stating where the article was grown and certifying that 
the article was found by the plant protection service of the country in 
which it was grown to be free of various plant diseases. Also, all of 
the restricted articles listed above are subject to a 2-year postentry 
quarantine period, as specified in Sec. 319.37-7. In postentry 
quarantine, restricted articles are grown in an approved area and 
observed in order to detect plant pests undetectable by inspection at 
the port of entry. In addition, we proposed to amend Sec. 319.37-14(b) 
of the regulations by removing the port of Laredo, TX, from the list of 
ports with plant inspection stations.
    We solicited comments concerning our proposal for 30 days ending 
April 12, 1995. On April 26, 1995, we published a notice (60 FR 20436, 
Docket No. 94-102-2) reopening and extending the comment period until 
May 26, 1995. We received a total of four comments on or before May 26. 
They were from producers, industry representatives, and representatives 
of State governments. These comments are discussed below.
    One commenter expressed concerns about the risks associated with 
allowing the importation of fruit trees from private nurseries in 
France. The commenter cited Canada's decision to stop importing 
grapevines from France due to pest interceptions. The commenter 
suggested random sampling of imported fruit trees to assure compliance 
with disease-free certification requirements in Sec. 319.37-5 of the 
regulations.
    We are aware of the problems that Canada encountered with 
grapevines from France. We understand that those problems have been 
resolved. Canada now allows the importation of grapevines from France 
under certain restrictions. Canadian officials detected these problems 
through routine tests of the imported materials. As described below, 
APHIS performs routine tests of fruit trees imported into the United 
States in addition to the requirements for inspections at the port of 
entry and postentry quarantine.
    All of the safeguards that are currently in the regulations for 
Chaenomeles, Cydonia, Malus, Prunus, and Pyrus spp. imported into the 
United States from government nurseries in France will also apply to 
fruit trees imported into the United States from private nurseries in 
France. Fruit trees must be imported through an APHIS plant inspection 
station where they will be inspected for plant pests. If the imported 
fruit trees are free from such plant pests, samples will be taken and 
sent to the National Plant Germplasm Quarantine Center (NPGQC) at 
Beltsville, MD. NPGQC tests the fruit trees for viruses and other 
submicroscopic pathogens. The balance of the fruit tree shipment is 
grown under postentry quarantine for two growing seasons at an approved 
postentry quarantine growing site. The plants are inspected during that 
period by State plant regulatory officials. These postentry quarantine 
processes are contained in Sec. 319.37-7 and have successfully 
protected the United States against the introduction of plant pests 
while allowing the entry of valuable fruit varieties.
    We believe that these safeguards are adequate to prevent the 
introduction of plant pests into the United States on fruit trees 
imported from private nurseries in France. Therefore, we are making no 
changes based on this comment.
    One commenter was concerned about the manageability of the 
postentry quarantine inspections and suggested that we limit the volume 
of imported fruit trees to that which is needed for propagation 
purposes, not ``instant orchards.''

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    The import permits for plants to be grown in postentry quarantine 
do not limit the number of plants that may be imported into the United 
States. However, the regulations in Sec. 319.37-7 require that each 
participating State review pending permit applications for articles to 
be grown under postentry quarantine conditions in the State and report 
to APHIS whether the site is of adequate size to contain the number of 
plants proposed for importation.
    As specified in the regulations in Sec. 319.37-7, APHIS issues 
permits only after determining that State services are available to 
monitor the postentry quarantine. Therefore, APHIS may withhold 
approval of a permit application if the applicant indicates the intent 
to import quantities of postentry plants that the State does not have 
the resources to inspect, or that exceed an amount that the State 
believes could be grown at the proposed site. Therefore, APHIS has the 
ability under Sec. 319.37-7 of the regulations to prevent the 
importation of an ``instant orchard'' by denying approval of a permit 
if such actions are justifiable. Therefore, we are making no changes 
based on this comment.
    One commenter expressed concern about the importation of certain of 
the Prunus species (cherry trees) due to a new strain of the plum pox 
virus that has been detected in cherry trees in Russia and eastern 
Europe. Prior to this detection, cherry trees had been considered 
resistant to the plum pox virus.
    APHIS is aware of the reports that a new strain of the plum pox 
virus was detected in cherry trees in Bulgaria, Moldova, and Russia. 
APHIS is closely watching any developments of this strain of plum pox. 
At this time, there has been no report of this strain of plum pox being 
detected in France or the other European countries from which cherry 
trees currently may be imported into the United States.
    Plum pox is also a disease of quarantine importance to France and 
the other European countries from which cherry trees may be imported 
into the United States. Fruit tree certification programs in France and 
other European countries include serological testing of cherry trees 
that would detect plum pox if it were present. Additionally, plants of 
the Prunus species imported into France and other European countries 
are held and tested at quarantine stations. These measures prevent 
disease from coming into France and other European countries from which 
cherry trees may be imported into the United States. Also, the tests 
that APHIS performs for all fruit trees imported into the United States 
from Europe would detect plum pox if any trees were infected. These 
precautions, and a 2-year postentry quarantine, provide adequate 
safeguards to prevent the introduction of plum pox into the United 
States. Therefore, we are making no changes based on this comment.
    Plum pox is an important disease of fruit trees; should this strain 
expand beyond eastern Europe, APHIS would reassess our import 
regulations to ensure that fruit trees imported into the United States 
are not infected with plum pox.
    One commenter questioned previous occurrences of nursery stock or 
propagative materials being imported into the United States from 
private nurseries in France.
    While the intention of the regulations was to prohibit the 
importation into the United States of Chaenomeles, Cydonia, Malus, 
Prunus, and Pyrus spp. from private nurseries in France, the 
regulations were interpreted differently by plant regulatory officials 
in the United States and abroad. As a result, some fruit trees from 
private nurseries in France were imported into the United States.
    To prevent a similar misunderstanding of the requirements for 
importing Prunus spp. not immune to plum pox, we are adding wording to 
Sec. 319.37-5(b) to make it clear that these plants must be grown in a 
government operated nursery (research station).
    Two commenters expressed concern that the importation of fruit 
trees from private nurseries in France could have a negative economic 
impact on domestic producers. One commenter suggested that we impose a 
tariff on fruit trees from France to make the prices more comparable to 
U.S. trees. The commenter felt that France grows and sells fruit trees 
much less expensively than U.S. growers can and that fruit trees from 
France have glutted the European and U.S. fruit tree markets. The other 
commenter was concerned that easing trade restrictions would be 
detrimental to domestic markets.
    APHIS bases its decisions to allow fruit trees to be imported into 
the United States on whether these importations can be made without 
significant risk of plant pest introduction. We believe that certain 
fruit trees produced in private nurseries in France, certified as 
meeting the requirements in the regulations by the plant protection 
service of France, may be imported into the United States without 
posing a pest risk to the United States. Furthermore, we have no 
authority to impose tariffs or to limit importations based on their 
economic impact on domestic markets. Therefore, we are making no 
changes based on this comment.

Miscellaneous

    In addition, we are making nonsubstantive editorial changes to the 
regulations to correct typographical errors.
    Therefore, based on the rationale set forth in the proposed rule 
and in this document, we are adopting the provisions of the proposal as 
a final rule, with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    We are amending the regulations to allow species of the genera 
Chaenomeles, Cydonia, Malus, Pyrus, and certain species of Prunus 
(those immune to plum pox virus) grown in private nurseries in France 
to be imported into the United States as restricted articles under the 
same conditions already applied to those same articles when grown in 
government nurseries in France. All of these restricted articles must 
be accompanied by a phytosanitary certificate of inspection stating 
where the article was grown and certifying that the article was found 
by the plant protection service of the country in which grown to be 
free of various plant diseases. Also, all of the restricted articles 
listed above are subject to a 2-year postentry quarantine period, as 
specified in Sec. 319.37-7.
    Prior to this final rule, the regulations stated that species of 
the genera Chaenomeles, Cydonia, Malus, Pyrus, and certain species of 
Prunus (those immune to plum pox virus) could only be certified from a 
government operated nursery where the original parent stock is indexed 
for the appropriate national fruit tree program. The regulations did 
not specify that the trees also must be grown in the government 
nursery. Thus the regulatory language resulted in different 
interpretations of its intent by plant regulatory officials in the 
United States and abroad.
    During the first nine months of fiscal year 1994, approximately 
312,893 fruit trees valued at $1.64 million were imported into the 
United States from Belgium, France, and The Netherlands. Importations 
of Malus spp. from all three countries accounted for 99.9

[[Page 51210]]

percent (312,840) of imported fruit trees. Thirty-two trees of Prunus 
spp. and 21 of Pyrus spp. were also imported. There were no imports of 
Chaenomeles spp. or Cydonia spp. Prices of imported fruit trees 
averaged about $5.25 per tree.
    Annually, domestic producers market about 20 million fruit trees of 
these five genera, valued at approximately $105 million. Domestic tree 
prices range from $5 to $6 per tree. Imported fruit trees, therefore, 
currently account for only about 1.5 percent of fruit trees available 
in the U.S. market.
    Shipments from government research stations tend to be small, 
whereas shipments from private nurseries are generally large. 
Historically, we have received small shipments from France. In 1994 
there was a single importation of 25,000 fruit trees from a private 
nursery in France. In 1995, there were 4 shipments of fruit trees from 
France (between 2 and 42 fruit trees per shipment) imported into the 
United States. Therefore, we expect that as a result of this rule, 
private nurseries in France could export 20,000 to 30,000 trees to the 
United States each year. This number of fruit trees would account for 
less than one-half of one percent of the fruit trees available in the 
U.S. market. Furthermore, these fruit trees from France probably will 
compete directly with imports from The Netherlands, thus lessening the 
impact on U.S. producers. We anticipate, therefore, that this rule will 
not have a significant economic impact on domestic fruit tree producers 
or other small entities.
    Also, we have determined, using the Small Business Administration 
definition of a small business involved in the retail nursery business 
or the wholesale trade of flowers and nursery stock (100 or fewer 
employees), that there are currently about 9,097 small retail nurseries 
and 11,347 small wholesale shippers of flowers and nursery stock in the 
United States. We expect that these small businesses may benefit, if 
only slightly, from this rule. They will gain access to a greater 
variety of imported fruit trees, possibly at lower prices.
    We are also removing the port of Laredo, TX, from the list of ports 
with plant inspection stations. About 400 million plants are imported 
through plant inspection stations into the United States annually. Only 
24 shipments of 21,429 plants (less than 1 percent of 400 million) were 
imported through the plant inspection station at Laredo in 1993. In 
view of the low volume of plants imported into the United States 
through the Laredo plant inspection station, we do not believe that 
this rule will have a significant economic effect on businesses or 
other entities, large or small. Moreover, any plants requiring written 
permits and previously imported through Laredo could be diverted to the 
ports of Brownsville or El Paso, TX, which still retain plant 
inspection stations.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

List of Subjects in 7 CFR Part 319

    Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by 
reference, Nursery stock, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Rice, Vegetables.

    Accordingly, 7 CFR part 319 is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    1. The authority citation for part 319 continues to read as 
follows:

    Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and 
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

    2. Section 319.37-5 is amended as follows:
    a. In paragraph (b)(1), the first sentence is amended by adding the 
words ``the article was'' immediately before the words ``grown to be'' 
and by removing the reference to ``(b)(2)'' and adding a reference to 
``(b)(3)'' in its place.
    b. Footnote 7 and its reference are removed.
    c. Paragraph (b)(2) is redesignated as paragraph (b)(3) and a new 
paragraph (b)(2) is added to read as set forth below.
    d. Paragraph (d) is amended by adding a closed parenthesis 
immediately after the words ``sweet-william''.


Sec. 319.37-5   Special foreign inspection and certification 
requirements.

* * * * *
    (b) * * *
    (2) Species of Prunus not immune to plum pox virus (species other 
than P. avium, P. cerasus, P. effusa, P. laurocerasus, P. mahaleb, P. 
padus, P. sargentii, P. serotina, P. serrula, P. serrulata, P. 
subhirtella, P. yedoensis, and P. virginiana) and grown in Belgium, 
France, Germany, Great Britain, or The Netherlands shall be certified 
only from the government operated nurseries (research stations) where 
the certified plants were grown and the original parent stock is 
indexed for the appropriate national fruit tree certification program.
* * * * *


Secs. 319.37-5, 319.37-6, 319.37-7, 319.37-8, and 319.37-13   [Amended]

    3. Footnotes 8 through 12 and their references are redesignated as 
footnotes 7 through 11, respectively.


Sec. 319.37-14   [Amended]

    4. In Sec. 319.37-14, paragraph (b), under the list of ports of 
entry in Texas, the asterisk immediately preceding the entry for Laredo 
is removed.

    Done in Washington, DC, this 25th day of September 1996.
A. Strating,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-25100 Filed 9-30-96; 8:45 am]
BILLING CODE 3410-34-P