[Federal Register Volume 68, Number 111 (Tuesday, June 10, 2003)]
[Rules and Regulations]
[Pages 34517-34519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14551]



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  Federal Register / Vol. 68, No. 111 / Tuesday, June 10, 2003 / Rules 
and Regulations  

[[Page 34517]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-084-2]


Removal of Cold Treatment Requirement for Ya Pears Imported From 
Hebei Province in China

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are removing the cold treatment requirement for Ya pears 
imported from Hebei Province in the People's Republic of China. The 
cold treatment requirement had been imposed to ensure that Ya pears did 
not introduce the Oriental fruit fly into the United States. The 
People's Republic of China has submitted data indicating that no 
Oriental fruit flies have been found in Hebei Province since the 
beginning of 1997 and has requested that we remove the cold treatment 
requirement. This action will remove a restriction that no longer 
appears necessary.

EFFECTIVE DATE: June 10, 2003.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. Gadh, Import Specialist, 
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road, Unit 
140, Riverdale, MD 20737-1236; (301) 734-6799.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 
through 319.56-8, referred to below as the regulations) prohibit or 
restrict the importation of fruits and vegetables into the United 
States from certain parts of the world to prevent the introduction and 
spread of plant pests that are new to or not widely distributed within 
the United States.
    On December 20, 2002, we published in the Federal Register (67 FR 
77940-77942, Docket No. 02-084-1) a proposal to amend the regulations 
in Sec.  319.56-2ee by removing the requirement that Ya pears imported 
from Hebei Province in the People's Republic of China be cold treated 
for Oriental fruit fly. We proposed to remove this requirement because 
fruit fly trapping data submitted in March 2000 by the People's 
Republic of China showed no occurrence of Oriental fruit fly in Hebei 
Province for 1997 through 1999. Further data have continued to indicate 
that Oriental fruit fly is not present in Hebei Province. In addition, 
the cool climate of Hebei Province, which is comparable to that of 
Pennsylvania in the United States, does not favor the development of 
Oriental fruit fly. We proposed to leave the other safeguards required 
by Sec.  319.56-2ee for Ya pears from Hebei Province in place, as they 
help to prevent against the introduction of other plant pests.
    We solicited comments concerning our proposal for 60 days ending 
February 18, 2003. We received four comments by that date. They were 
from a private citizen, an industry advocacy group, and representatives 
of State and foreign governments. The issues raised by the commenters 
are discussed below.
    One commenter opposed the proposed rule on the grounds that it 
would increase the risk of a fruit fly outbreak in the United States, 
with potentially devastating effects for U.S. agriculture.
    When the Animal and Plant Health Inspection Service (APHIS) 
originally allowed the importation of Ya pears from China, we required 
that the pears be cold treated because we had no information indicating 
that Oriental fruit fly was not present in Hebei and Shandong 
Provinces. As stated above, we now have data submitted by the People's 
Republic of China that indicates that Oriental fruit fly is not present 
in Hebei Province; in addition, climatic conditions there do not favor 
its establishment. (Note: In the proposed rule and in the regulations 
in Sec.  319.56-2ee, we incorrectly refer to Shandong Province as 
``Shadong Province.'' This rule corrects that error in the regulations, 
and we refer to the province by its correct name throughout this 
document.)
    In order to require cold treatment for Ya pears imported into the 
United States from Hebei Province, we would have to have scientific 
evidence indicating that Oriental fruit fly is present in Hebei 
Province and that importing Ya pears from Hebei Province would pose a 
risk of introducing Oriental fruit fly into the United States. The 
available scientific evidence, to the contrary, indicates that the cold 
treatment requirement for Ya pears imported from the Hebei Province in 
China is no longer necessary. We cannot require treatment based on a 
purely theoretical risk of pest introduction. Therefore, we are 
removing the requirement that Ya pears imported into the United States 
from Hebei Province be cold treated, and we are making no changes in 
response to this comment.
    One commenter supported the proposed rule on the condition that the 
People's Republic of China maintain an Oriental fruit fly detection 
program in Hebei Province and submit annual reports to APHIS affirming 
that fruit fly continues not to be present in Hebei Province. 
Furthermore, this commenter asserted, if Oriental fruit fly is ever 
detected in Hebei Province, APHIS should immediately reinstate the cold 
treatment requirement.
    The People's Republic of China will continue trapping and surveying 
for Oriental fruit fly and for other fruit flies and quarantine pests 
in Hebei Province after this final rule becomes effective. We will not, 
however, require that China submit the trapping and surveying data to 
us. Climatic conditions do not favor the establishment of Oriental 
fruit fly in Hebei Province, and we have no reason to suspect that 
Oriental fruit fly will become established there. Nevertheless, if 
trapping data were to indicate in the future that a quarantine pest 
such as Oriental fruit fly is present in Hebei Province, the national 
plant protection organization of China would notify APHIS immediately, 
fulfilling its obligation to do so under trade agreements for 
agricultural products. Thus, any requirement that the People's Republic 
of China continue submitting trapping data would, in practice, only 
mandate repeated submissions of negative data. Since we already have 
data sufficient to prove that Oriental fruit fly does not exist in 
Hebei Province, we do not believe further submissions of negative data 
are necessary.

[[Page 34518]]

    In the event that Oriental fruit fly is detected in Hebei Province 
after this final rule becomes effective, we would take any and all 
appropriate actions to ensure that this plant pest is not introduced 
into the United States. Such actions may include, but may not be 
limited to, the reinstatement of the cold treatment requirement for Ya 
pears imported from Hebei Province.
    One commenter questioned the reliability of the fruit fly trapping 
data submitted to us by the People's Republic of China. We have 
examined the data and believe it to be accurate. In the proposed rule, 
we invited persons interested in reviewing the data to contact the 
person listed under FOR FURTHER INFORMATION CONTACT. We received no 
comments asserting that any specific aspects of the data appeared 
unreliable. We are making no changes in response to this comment.
    One commenter argued that the recent rise in the quantity of 
imports of Ya pears from China and the decrease in the price of the 
imports, as described in the economic analysis in the proposed rule, 
showed that the cold treatment requirement was not significantly 
hampering the ability of Chinese producers to export Ya pears to the 
United States. The commenter also took issue with the statement in the 
economic analysis that Ya pears are not a substitute for domestically 
produced pears, on the grounds that all produce items compete for a 
share of the food dollar of U.S. consumers. This commenter stated that 
until restrictions on the export of U.S. pears to China are lifted by 
the Government of the People's Republic of China, APHIS restrictions on 
the importation of pears from China should remain in place. Another 
commenter opposed removing the cold treatment requirement on the 
grounds that the cost of complying with the cold treatment requirement 
was not particularly onerous.
    Cold treatment was required for Ya pears from Hebei Province in 
China because we had no information indicating that Oriental fruit fly 
was not present in Hebei Province. Data made available by the People's 
Republic of China indicate that the Oriental fruit fly is not present 
in Hebei Province; therefore, this requirement appears to be 
unnecessary. The purpose of treating imported fruits and vegetables is 
to mitigate pest risk, not to impose economic barriers on the 
importation of fruits and vegetables; APHIS has no authority to 
regulate based on purely economic considerations. We are making no 
changes in response to these comments.
    One commenter supported the proposed rule but argued that we should 
additionally remove the cold treatment requirement from Ya pears 
imported from Shandong Province in China. We will consider removing 
this requirement if the People's Republic of China provides APHIS with 
data similar to the data submitted for Hebei Province indicating that 
Oriental fruit fly is not present in Shandong Province. In addition, 
removing the cold treatment requirement from Ya pears imported from 
Shandong Province is beyond the scope of the present rulemaking. We are 
making no changes in response to this comment.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register. Immediate 
implementation of this rule is warranted to remove a cold treatment 
requirement for Ya pears imported from Hebei Province in the People's 
Republic of China that is no longer necessary. Therefore, the 
Administrator of the Animal and Plant Health Inspection Service has 
determined that this rule should be effective upon publication in the 
Federal Register.

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 the purposes of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    This rule removes the cold treatment requirement for Ya pears 
imported from Hebei Province in the People's Republic of China. This 
action is based on data from the national plant protection organization 
of the People's Republic of China indicating that Oriental fruit fly 
does not occur in Hebei Province and the fact that climatic conditions 
do not favor the establishment of Oriental fruit fly in Hebei Province.
    The rapid growth in Ya pear imports by the United States from China 
is evident in table 1. Imports increased from about 329,000 kilograms 
in 1998 to over 6.57 million kilograms in 2001. The estimated cost 
savings discussed in this analysis are based on the import quantity and 
value for 2001.

                                  Table 1.--Ya Variety Pear Imports From China
----------------------------------------------------------------------------------------------------------------
                                                                                       Value           Price
                                                                     Quantity      (millions of    (dollars per
                                                                    (kilograms)      dollars)        kilogram)
----------------------------------------------------------------------------------------------------------------
1998............................................................         328,818          $0.328           $1.00
1999............................................................       2,097,863           2.011            0.96
2000............................................................       5,264,099           3.746            0.71
2001............................................................       6,573,113           3.559           0.54
----------------------------------------------------------------------------------------------------------------
Source: World Trade Atlas, based on data from the U.S. Bureau of the Census. Harmonized Tariff Schedule code
  080820.

    We expect that removing the cold treatment requirement for Ya pears 
imported from Hebei Province will reduce shipping costs. The magnitude 
of the reduction will depend on transport costs with and without the 
cold treatment requirement. While refrigeration costs will still be 
borne by importers in the absence of the cold treatment requirement, 
the costs required to maintain, monitor, and report cold treatment 
temperatures during transport will all be saved.
    The cold treatment schedule for Ya pears from China, as specified 
in the Plant Protection and Quarantine Treatment Manual, is T107-F. The 
number of days required for cold treatment en route under the 
schedule--10 to 14 days, depending on the treatment temperature--is 
less than the number of days it takes to ship Ya pears to the United 
States from China. No reduction in shipping time, and thus no 
associated cost savings, is expected to result from the removal of the 
cold treatment requirement.
    A recent analysis of cold treatment requirements for the 
Mediterranean fruit fly at U.S. ports, used here as a proxy

[[Page 34519]]

for cold treatment costs en route, indicated a cost of 50 cents per day 
per pallet.\1\ Most of this expense is the cost of refrigeration. Under 
this rule, Ya pears from Hebei Province will still be refrigerated 
while en route to the United States, although not to cold treatment 
specifications. For this analysis, it is assumed that the savings from 
not having to meet cold treatment requirements would be 25 cents per 
day per pallet. This amount probably exceeds the actual savings that 
will be realized, providing an upper-bound approximation of potential 
effects.
---------------------------------------------------------------------------

    \1\ Analysis for APHIS Docket 02-071-1, published in the Federal 
Register on October 15, 2002 (67 FR 63529-63536).
---------------------------------------------------------------------------

    Assuming that boxing and pallet loading capacities are similar to 
those of domestic pears, a box of Ya pears would contain about 20 
kilograms and a pallet would contain 49 boxes.\2\ Assuming further a 
14-day cold treatment period, the longest specified in the cold 
treatment regimen, the cost of cold treatment will be about 36 cents 
per 100 kilograms, or 0.36 cents per kilogram.\3\ As shown in table 1, 
the average price of Ya pears has steadily fallen since imports began 
in 1998. Even so, estimated savings from not having to meet cold 
treatment requirements represent less than 1 percent of the 2001 price 
of 54 cents per kilogram. In addition, pears from Shandong Province 
will be unaffected by the proposed change, further dampening the total 
cost effect in the United States.
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    \2\ The packing measure used for pears is four-fifths of a 
bushel, which corresponds to about 42 to 45 pounds. (Kevin Moffett, 
Pear Bureau, personal communication).
    \3\ (Twenty-five cents per day per pallet) x (14 days per 
treatment) = $3.50 per pallet per treatment. (Twenty kilograms per 
box) x (49 boxes per pallet) = 980 kilograms per pallet. ($3.50) / 
(980 kilograms) = $0.00357/kg.
---------------------------------------------------------------------------

    Ya pears are not produced in the United States, and Ya pears are 
not a substitute for domestically produced pears. Thus, this rule is 
not expected to affect the U.S. domestic pear industry.

Economic Effects on Small Entities

    Under the criteria established by the Small Business 
Administration, fruit importers (North American Industry Classification 
System code 422480, ``Fresh Fruit and Vegetable Wholesalers'') must 
have 100 or fewer employees to be considered small entities. At least 
some U.S. importers of Ya pears from Hebei Province in China may be 
small entities, but the expected economic effect of no longer needing 
to meet cold treatment requirements is minor.
    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 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

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

List of Subjects in 7 CFR Part 319

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

0
Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7711-7714, 7718, 7731, 7732, 7751-7754, 
and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. Section 319.56-2ee is amended as follows:
0
a. In paragraph (a)(1), by removing the word ``Shadong'' and adding the 
word ``Shandong'' in its place.
0
b. By revising paragraphs (b) and (c) to read as set forth below.


Sec.  319.56-2ee  Administrative instructions: Conditions governing the 
entry of Ya variety pears from China.

* * * * *
    (b) Treatment. Pears from Shandong Province must be cold treated 
for Bactrocera dorsalis in accordance with the Plant Protection and 
Quarantine Treatment Manual, which is incorporated by reference at 
Sec.  300.1 of this chapter.
    (c) Each shipment of pears must be accompanied by a phytosanitary 
certificate issued by the Chinese Ministry of Agriculture stating that 
the conditions of this section have been met.

    Done in Washington, DC, this 5th day of June, 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-14551 Filed 6-9-03; 8:45 am]
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