[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Proposed Rules]
[Pages 38302-38304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10551]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 129 / Thursday, July 6, 2006 / 
Proposed Rules  

[[Page 38302]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2006-0073]


Importation of Shelled Garden Peas From Kenya

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the fruits and vegetables 
regulations to allow the importation of shelled garden peas from Kenya 
into the continental United States. In order to be eligible for 
importation, the peas would have to be shelled, washed, and inspected 
and accompanied by a phytosanitary certificate issued by the Kenya 
Plant Health Inspectorate Service. This action would allow for the 
importation of shelled peas from Kenya into the continental United 
States while continuing to protect against the introduction of 
quarantine pests.

DATES: We will consider all comments that we receive on or before 
September 5, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower ``Search Regulations and Federal 
Actions'' box, select ``Animal and Plant Health Inspection Service'' 
from the agency drop-down menu, then click on ``Submit.'' In the Docket 
ID column, select APHIS-2006-0073 to submit or view public comments and 
to view supporting and related materials available electronically. 
Information on using Regulations.gov, including instructions for 
accessing documents, submitting comments, and viewing the docket after 
the close of the comment period, is available through the site's ``User 
Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to APHIS-2006-0073, 
Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to APHIS-2006-0073.
    Reading Room: 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.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, 
Commodity Import Analysis and Operations, Plant Health Programs, PPQ, 
APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-
8758.

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 
dissemination of plant pests that are new to or not widely distributed 
within the United States.
    The Kenya Plant Health Inspectorate Service (KEPHIS) has requested 
that the Animal and Plant Health Inspection Service (APHIS) amend the 
regulations to allow shelled garden peas from Kenya to be imported into 
the United States. As part of our evaluation of Kenya's request, we 
prepared a pest risk assessment (PRA) and a risk management document. 
Copies of the PRA and risk management document may be obtained from the 
person listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site (see ADDRESSES above for instruction for 
accessing Regulations.gov).
    The PRA, titled ``Importation of Garden Peas, Shelled Pisum sativum 
L. from Kenya into the Continental United States, a Qualitative 
Pathway-Initiated Risk Assessment'' (May 2006), evaluates the risks 
associated with the importation of shelled garden peas into the 
continental United States (the lower 48 States and Alaska) from Kenya. 
The PRA identified 13 pests of quarantine significance present in 
garden peas (Pisum sativum) in Kenya: The weevils Callosobruchus 
analis, C. chinensis, C. maculates, and C. phaseoli; the borers 
Crocidosema aporema, Leucinodes orbonalis, and Maruca vitrata; the 
grasshopper Diabolocatantops axillaris; the bollworm Helicoverpa 
armigera; the caterpillar Lampides boeticus; the leafworm Spodoptera 
littoralis; the flower thrips Thrips flavus; and the looper 
Thysanoplusia orichalcea.
    However, the assessment took into account the post-harvest handling 
that the peas would be subjected to in Kenya and further determined 
that none of the 13 quarantine significant pests identified may be 
reasonably expected to follow the pathway of shelled garden pea 
shipments from Kenya. As a result of these findings, the 13 pests of 
quarantine significance were listed as not following the pathway, and, 
therefore, were not analyzed further.
    The specific post-harvest processing procedures suggested by KEPHIS 
that were considered in the PRA and that would be required under this 
proposed rule are described in the following paragraphs.
    The imports of garden peas would be limited to peas that have been 
removed from their shell. Shelling allows for visual inspection and 
removes most of the larval pests that may be feeding on the pods and 
exposes pests that feed on the pea. These pests are highly visible and 
easily detected during the shelling process.
    The shelled peas would then have to be washed in a disinfectant 
wash in water at 3 to 5 [deg]C containing 50 ppm of chlorine. The 
washing of the shelled peas further aids in the removal of any insects 
that might feed on individual peas.
    In addition, we would require that KEPHIS inspect the shelled peas 
and issue a phytosanitary certificate for each consignment of peas. The 
phytosanitary certificate would have to bear an additional declaration 
confirming that the required post-harvest shelling and washing 
procedures have been

[[Page 38303]]

followed, as well as a statement confirming that the peas have been 
inspected and found free of pests.
    We have determined that these proposed measures would prevent the 
introduction of plant pests into the United States. The proposed 
conditions described above for the importation of shelled garden peas 
from Kenya into the United States would be added to the fruits and 
vegetables regulations as a new Sec.  319.56-2ss.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to amend the fruits and vegetables regulations to 
allow the importation of shelled garden peas from Kenya into the 
continental United States. In order to be eligible for importation, the 
peas would have to be shelled, washed, and inspected and accompanied by 
a phytosanitary certificate issued by KEPHIS. This action would allow 
for the importation of shelled peas from Kenya into the continental 
United States while continuing to protect against the introduction of 
quarantine pests.
    The Regulatory Flexibility Act requires agencies to consider the 
economic impact of their regulations on small entities and to use 
flexibility to provide regulatory relief when regulations create 
economic disparities between differently sized entities. In accordance 
with the Act, APHIS has performed an initial regulatory flexibility 
analysis regarding the economic effects of this proposed rule on small 
entities. We do not have all the data necessary for a comprehensive 
analysis of the effects of this proposed rule on small entities that 
may incur benefits or costs from the implementation of this proposed 
rule. However, based on the information we do have, we believe that 
most, if not all, of the businesses affected by the proposed rule would 
be small, and there is no reason to conclude that adoption of this 
proposed rule would result in any significant economic effect on a 
substantial number of small entities.
    The United States is the third largest producer of garden peas 
after India and China. However, less than 1 percent of U.S. production 
goes into the fresh market, the reason being that fresh garden peas 
require harvesting by hand, whereas peas destined for processing can be 
machine-harvested. The cost of farm labor is considerably higher in the 
United States than in many other countries.
    According to industry sources, fresh garden peas grown in the 
United States are mainly produced in California (more than 85 percent), 
with the rest grown mainly in Florida. Published data on domestic 
production of fresh garden peas exist only for two counties in 
California, San Luis Obispo County and Santa Barbara County.\1\ Based 
on the 2000-2004 data for these two counties, California snow pea 
production declined over that 5-year period, while green pea production 
has expanded. The value of pea production in those two counties in 2004 
was $29 million.
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    \1\Annual County Agricultural Commissioner Report Data 
(Sacramento: California Department of Food and Agriculture, 2000-
2004).
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    The United States is a net importer of fresh/chilled peas, and our 
major foreign supplier of fresh garden peas in 2005 was Guatemala, with 
a 45 percent share (by value) of U.S. imports, followed by Peru (29 
percent) and Mexico (24 percent). Nearly all U.S. fresh pea exports go 
to Canada.
    Our reported domestic supply of fresh garden peas (California 
production plus net U.S. imports) in 2004 totaled about 39,700 metric 
tons, valued at $42.7 million. These totals exclude U.S. production 
that may have taken place outside of San Luis Obispo and Santa Barbara 
Counties.
    If we include the 15 percent of unreported U.S. production of fresh 
garden peas thought to occur outside of the two California counties, 
then the 2004 domestic supply would total about 42,800 metric tons, 
with roughly 65 percent imported and 35 percent supplied by U.S. 
producers.
    U.S. entities that could be affected by the proposed rule are 
domestic producers of fresh garden peas and wholesalers who import 
fresh garden peas. Businesses producing green peas and snow peas are 
classified in the North American Industry Classification System (NAICS) 
within the category of Other Vegetable (except Potato) and Melon 
Farming (NAICS code 111219). The Small Business Administration's (SBA) 
small entity definition for these producers is annual receipts of not 
more than $750,000. Firms that would import fresh, shelled garden peas 
from Kenya are defined as small entities if they have 100 or fewer 
employees (NAICS code 424480, Fresh Fruit and Vegetable Merchant 
Wholesalers).\2\
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    \2\ The wholesale sector comprises two types of wholesalers: 
Those that sell goods on their own account and those that arrange 
sales and purchases for others for a commission or fee. Importers 
are included in both cases.
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    In general, firms engaged in production or importation of 
agricultural commodities are predominantly small. We believe that most 
if not all of the businesses affected by the proposed rule would be 
small.
    We do not know the number of U.S. producers of fresh garden peas. 
According to the 2002 Census of Agriculture for California Counties, 
there were 327 vegetable farms in San Luis Obispo and Santa Barbara 
Counties, the two counties for which there are published fresh garden 
pea production data. We do not know how many of these vegetable farms 
produce fresh garden peas. Also, we do not know their size, but in 
general, such entities are predominantly small. We welcome information 
that the fresh vegetable industry or general public may provide on the 
number and size of entities that could be affected by the proposed 
rule.

Alternatives

    An alternative to the proposed rule would be to require that a 
different set of phytosanitary measures be satisfied. Risk assessment 
and risk management documents prepared by APHIS identify 13 quarantine 
pests for fresh garden peas from Kenya. For the current proposed rule, 
the commodity would be subject to certain risk mitigations, including 
removal of the seeds from the pod, washing of the shelled peas in water 
at 3 to 5 [deg]C containing 50 ppm chlorine, phytosanitary 
certification by KEPHIS, and U.S. port-of-entry inspection. These 
conditions are expected to successfully mitigate risks posed to U.S. 
agriculture. Import requirements less or more stringent than those 
proposed would, respectively, either not provide an appropriate level 
of phytosanitary protection or impose unduly burdensome measures.
    We would appreciate any comments on the potential economic effects 
of allowing the importation into the continental United States of 
garden peas from Kenya, and on how the proposed rule could be modified 
to reduce expected costs or burdens for small entities consistent with 
its objectives.
    This proposed rule contains certain reporting and recordkeeping 
requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12988

    This proposed rule would allow shelled garden peas to be imported 
into the continental United States from Kenya. If this proposed rule is 
adopted, State and local laws and regulations regarding shelled garden 
peas imported under this rule would be preempted while the fruit is in 
foreign commerce.

[[Page 38304]]

Fresh fruits and vegetables are generally imported for immediate 
distribution and sale to the consuming public and would remain in 
foreign commerce until sold to the ultimate consumer. The question of 
when foreign commerce ceases in other cases must be addressed on a 
case-by-case basis. If this proposed rule is adopted, no retroactive 
effect will be given to this rule, and this rule will not require 
administrative proceedings before parties may file suit in court 
challenging this rule.

Paperwork Reduction Act

    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 APHIS-2006-0073. 
Please send a copy of your comments to: (1) APHIS-2006-0073, Regulatory 
Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road 
Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, 
USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, 
DC 20250. A comment to OMB is best assured of having its full effect if 
OMB receives it within 30 days of publication of this proposed rule.
    This proposed rule would amend the fruits and vegetables 
regulations to allow the importation of shelled garden peas from Kenya 
into the continental United States. In order to be eligible for 
importation, the peas would have to be shelled, washed, and inspected 
and accompanied by a phytosanitary certificate issued by KEPHIS. The 
phytosanitary certificate would have to bear an additional declaration 
stating that the peas had been shelled and washed in accordance with 
the proposed requirements and had been inspected and found free of 
pests.
    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 0.15 hour per response.
    Respondents: Importers of peas, KEPHIS.
    Estimated annual number of respondents: 2.
    Estimated annual number of responses per respondent: 20.
    Estimated annual number of responses: 40.
    Estimated total annual burden on respondents: 6 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, 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. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. A new Sec.  319.56-2ss would be added to read as follows:


Sec.  319.56-2ss  Conditions governing the entry of shelled garden peas 
from Kenya.

    Garden peas (Pisum sativum) may be imported into the continental 
United States from Kenya only under the following conditions:
    (a) The peas must be shelled from the pod.
    (b) The peas must be washed in disinfectant water at 3 to 5 [deg]C 
containing 50 ppm chlorine.
    (c) Each shipment of peas must be accompanied by a phytosanitary 
certificate of inspection issued by the national plant protection 
organization of Kenya bearing the following additional declaration: 
``These peas have been shelled and washed in accordance with 7 CFR 
319.56-2ss and have been inspected and found free of pests.''

    Done in Washington, DC, this 29th day of June 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-10551 Filed 7-5-06; 8:45 am]
BILLING CODE 3410-34-P