[Federal Register Volume 71, Number 183 (Thursday, September 21, 2006)]
[Rules and Regulations]
[Pages 55087-55090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7891]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 183 / Thursday, September 21, 2006 / 
Rules and Regulations  

[[Page 55087]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 305 and 319

[Docket No. APHIS-2006-0025]


Importation of Table Grapes From Namibia

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the fruits and vegetables regulations to allow 
the importation into the United States of fresh table grapes from 
Namibia under certain conditions. As a condition of entry, the grapes 
must undergo cold treatment and fumigation with methyl bromide and must 
be accompanied by a phytosanitary certificate with an additional 
declaration stating that the commodity has been inspected and found 
free of the specified pests. In addition, the grapes will also be 
subject to inspection at the port of first arrival. This action allows 
for the importation of grapes from Namibia into the United States while 
continuing to provide protection against the introduction of quarantine 
pests.

DATES: Effective Date: October 23, 2006.

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.
    On June 26, 2006, we published in the Federal Register (71 FR 
36221-36225, Docket No. APHIS-2006-0025) a proposal \1\ to amend the 
fruits and vegetables regulations to allow the importation of fresh 
table grapes, in commercial shipments only, from Namibia into the 
United States under certain conditions. As a condition of entry, we 
proposed that the grapes would be subject to a combined treatment of 
cold treatment in accordance with schedule T107-e and methyl bromide 
fumigation in accordance with schedule T104-a-1. In addition, because 
the cold and methyl bromide treatments would not effectively mitigate 
the pest risk posed by the mealybugs Maconellicoccus hirsutus, 
Nipaecoccus vastator, and Rastrococcus iceryoides or the mollusks 
Cochlicella ventricosa and Theba pisana, we proposed that the National 
Plant Protection Organization of Namibia would be required to conduct 
phytosanitary inspections for those pests and that each shipment of 
grapes would have to be accompanied by a phytosanitary certificate 
bearing the additional declaration: ``The grapes in this shipment have 
been inspected and found free of Maconellicoccus hirsutus, Nipaecoccus 
vastator, Rastrococcus iceryoides, Cochlicella ventricosa and Theba 
pisana.''
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov, click on the ``Advanced Search'' tab, 
and select ``Docket Search.'' In the Docket ID field, enter APHIS-
2006-0025, then click on ``Submit.'' Clicking on the Docket ID link 
in the search results page will produce a list of all documents in 
the docket.
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    We solicited comments concerning our proposal for 60 days ending 
August 25, 2006. We received two comments by that date. The first 
comment was from a producer who was in favor of the importation of 
table grapes from Namibia. The second comment was from an industry 
group that expressed concern that the pest Scirtothrips dorsalis was 
not included in the preamble of the proposed rule on the list of pests 
that can be addressed by methyl bromide treatment. This was an 
inadvertent omission; the risks associated with Scirtothrips dorsalis 
were addressed within the pest risk assessment and risk mitigation 
documents associated with the proposed rule and the pest was cited 
specifically in the regulatory text of proposed Sec.  319.56-2ss(b) as 
a pest for which treatment is required.
    The commenter also expressed concern that Namibian table grapes 
would be shipped into the United States during a time period when they 
would be in direct competition with domestic table grapes (October and 
November) and that the economic analysis provided in the proposed rule 
focused too much on grapes intended for processed utilization (i.e., 
wine, juice, or raisins) rather than on grapes grown for the fresh 
market. Therefore, the commenter disagreed that the competitive impact 
of Namibian table grapes on domestic producers would be minimal. As 
stated in the proposed rule, grapes in Namibia mature in November, 
however, given that the grapes will be transported to the United States 
by cargo ship with a transit time of approximately 4 weeks, most grape 
shipments from Namibia would arrive from mid to late December until the 
end of January, well after peak harvest for domestic table grapes. The 
economic analysis in this final rule has been updated to reflect the 
additional information provided by the commenter regarding domestic 
grape production; however, that information did not affect the 
conclusions of our analysis. The impact of this rule on domestic table 
grape producers is still expected to be minimal.
    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.

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.
    We are amending the fruits and vegetables regulations to allow the 
importation into the United States of fresh table grapes from Namibia 
under certain conditions. As a condition of entry, the grapes will be 
subject to both cold treatment and fumigation with methyl bromide and 
will have to be accompanied by a phytosanitary certificate with an 
additional declaration stating that the commodity

[[Page 55088]]

has been inspected and found free of the specified pests. In addition, 
the grapes will also be subject to inspection at the port of first 
arrival. This action will allow for the importation of grapes from 
Namibia into the United States while continuing to provide protection 
against the introduction of quarantine pests.
    According to the Trade Law Center for Southern Africa, 7 grape 
companies in Namibia are currently cultivating 1,300 hectares, 
irrigated by water from the Orange River, and another 2,000 hectares 
are expected to be put to cultivation soon. Because of the climate in 
Namibia, grapes mature in November, which gives producers there a 
competitive advantage over producers in other southern hemisphere 
countries where the grape harvest begins in December. Imports of 
Namibian table grapes into the United States in the first year are 
expected to reach 22.5 40-foot containers (approximately 744,000 
pounds), which would account for less than one-tenth of 1 percent of 
fresh table grape imports into the United States and less than one-
tenth of 1 percent of total domestic utilized production of fresh table 
grapes. Total domestic utilized production accounted for approximately 
50 percent of the total domestic consumption of fresh table grapes in 
2004.\2\ Gross revenue of utilized production of fresh table grapes 
produced in the United States was approximately $794 million.\3\ Any 
displacement resulting from imports of Namibian fresh table grapes is 
likely to result in a reduction of less than one-tenth of 1 percent in 
gross revenue for producers, with at least part of the loss borne by 
foreign suppliers that share the same shipping season as Namibia, such 
as Chile.
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    \2\ USDA ERS Briefing Room, Fruit and Tree Nut Yearbook, 2005.
    \3\ Gross revenue of fresh table grape utilization is derived 
assuming a grower price of $0.45 per pound (ERS).
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    The small business size standard for grape farming without making 
wine, as identified by the Small Business Administration (SBA) based 
upon North American Industry Classification System code 111332, is 
$750,000 or less in annual receipts.\4\ While the available data do not 
provide the number of U.S. grape-producing entities according to size 
distribution as it relates to annual receipts, it is reasonable to 
assume that the majority of the operations are considered small 
businesses by SBA standards. According to the 2002 Census of 
Agriculture data, there were 23,856 grape farms in the United States in 
2002.\5\ It is estimated that approximately 93 percent of these grape 
farms had annual sales in 2002 of $500,000 or less, and are considered 
to be small entities by SBA standards.
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    \4\ Based upon 2002 Census of Agriculture--State Data and the 
``Small Business Size Standards by NAICS Industry,'' Code of Federal 
Regulations, Title 13, Chapter 1.
    \5\ The number of grape farms in the United States, as reported 
by the 2002 Census of Agriculture, is the total number of grape-
producing operations, which also include grapes produced for 
processed utilization.
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    The United States is a net importer of fresh table grapes. In 2004, 
the United States imported 1,322.8 million pounds of fresh table grapes 
with approximately 79 and 19 percent arriving from Chile and Mexico, 
respectively. In that same year, the United States exported 
approximately 606.3 million pounds of table grapes. Canada is the 
largest importer of U.S. fresh grapes, accounting for 44 percent of 
U.S. exports. The second and third largest importers of U.S. fresh 
grapes are Malaysia and Mexico, accounting for approximately 9 and 7 
percent of U.S. grape exports, respectively.\6\ U.S. imports of table 
grapes experienced an average increase of 6.6 percent annually over the 
last decade while exports have increased an average of 3.4 percent.\7\ 
Fresh utilization of U.S. grape production only accounts, on average, 
for 13 percent of total utilized U.S. grape production annually. U.S. 
wine production and raisin production account for an average of 60 
percent and 25 percent, respectively, of U.S. grape utilization 
annually.\8\
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    \6\ Source: Global Trade Atlas.
    \7\ Source: USDA FAS, PS&D Online. ``Table Grapes: Production, 
Supply and Distribution in Selected Countries,'' http://www.fas.usda.gov/psd/complete_tables/HTP-table6-104.htm.
    \8\ USDA ERS Briefing Room, Fruit and Tree Nut Yearbook, 2005.
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    Domestic consumers would benefit because Namibian table grapes 
mature a month earlier than table grapes from other countries in the 
southern hemisphere, providing access to an increased supply of fresh 
table grapes for a longer period of time. The negative impact of 
imports from Namibia is expected to be minimal for domestic producers. 
Utilized production of fresh table grapes accounted for approximately 
50 percent of total domestic consumption in 2004. Total gross revenue 
associated with the estimated quantity of Namibian imports is 
equivalent to less than one-tenth of 1 percent of the total gross 
revenue generated by U.S. fresh table grapes in 2004. In addition, any 
displacement of existing U.S. table grape supplies by Namibian imports 
is likely to be borne at least in part by foreign suppliers such as 
Chile, which shares the same shipping season as Namibia.
    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 final rule allows fresh table grapes to be imported into the 
United States from Namibia. State and local laws and regulations 
regarding table grapes imported under this rule will be preempted while 
the fruit is in foreign commerce. Fresh table grapes are generally 
imported for immediate distribution and sale to the consuming public, 
and 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. 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.

Use of Methyl Bromide

    Under this rule, table grapes imported into the United States from 
Namibia must be fumigated with methyl bromide in accordance with 
schedule T104-a-1 to kill external feeder insects. We estimate that 
between 1 and 22.5 40-foot containers of fresh table grapes will be 
imported from Namibia during the first shipping season. Importations 
may increase in future years. Fumigation using schedule T104-a-1 would 
require no more than 10 pounds of methyl bromide per container. No 
alternative treatment is currently available for these pests.
    The United States is fully committed to the objectives of the 
Montreal Protocol, including the reduction and ultimately the 
elimination of reliance on methyl bromide for quarantine and 
preshipment uses in a manner that is consistent with the safeguarding 
of U.S. agriculture and ecosystems. APHIS reviews its methyl bromide 
policies and their effect on the environment in accordance with the 
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 
et seq.) and Decision XI/13 (paragraph 5) of the 11th Meeting of the 
Parties to the Montreal Protocol, which calls on the Parties to review 
their ``national plant, animal, environmental, health, and stored 
product regulations with a view to removing the requirement for the use 
of methyl bromide for quarantine and preshipment where technically and 
economically feasible alternatives exist.''
    The United States Government encourages methods that do not use

[[Page 55089]]

methyl bromide to meet phytosanitary standards where alternatives are 
deemed to be technically and economically feasible. In some 
circumstances, however, methyl bromide continues to be the only 
technically and economically feasible treatment against specific 
quarantine pests. In addition, in accordance with Montreal Protocol 
Decision XI/13 (paragraph 7), APHIS is committed to promoting and 
employing gas recapture technology and other methods whenever possible 
to minimize harm to the environment caused by methyl bromide emissions.

National Environmental Policy Act

    An environmental assessment was prepared for, and made available 
for public comment through, the proposed rule for this rulemaking. No 
comments regarding the environmental assessment were received during 
the comment period for the proposed rule. The environmental assessment 
provides a basis for the conclusion that the importation of fresh table 
grapes under the conditions specified in this rule will not have a 
significant impact on the quality of the human environment. Based on 
the finding of no significant impact, the Administrator of the Animal 
and Plant Health Inspection Service has determined that an 
environmental impact statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\9\ Copies of the 
environmental assessment and finding of no significant impact are also 
available for public inspection at USDA, room 1141, South Building, 
14th Street and Independence Avenue, SW., Washington, DC, between 8 
a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons 
wishing to inspect copies are requested to call ahead on (202) 690-2817 
to facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
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    \9\ Go to http://www.regulations.gov, click on the ``Advanced 
Search'' tab and select ``Docket Search.'' In the Docket ID field, 
enter APHIS-2006-0025, click on ``Submit,'' then click on the Docket 
ID link in the search results page. The environmental assessment and 
finding of no significant impact will appear in the resulting list 
of documents.
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Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0300.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects

7 CFR Part 305

    Irradiation, Phytosanitary treatment, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements.

7 CFR Part 319

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


0
Accordingly, we are amending 7 CFR parts 305 and 319 as follows:

PART 305--PHYTOSANITARY TREATMENTS

0
1. The authority citation for part 305 continues to read as follows:

    Authority: 7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 
136a; 7 CFR 2.22, 2.80, and 371.3.


0
2. In Sec.  305.2, paragraph (h)(2)(i), the table is amended by adding, 
in alphabetical order, an entry for Namibia to read as follows:


Sec.  305.2  Approved treatments.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *

----------------------------------------------------------------------------------------------------------------
              Location                      Commodity                    Pest               Treatment schedule
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Namibia............................  Grape.................  External feeders...........  MB T104-a-1.
                                                             Cryptophlebia leucotreta,    CT T107-e.
                                                              Ceratitis capitata,
                                                              Ceratitis rosa,
                                                              Epichoristodes acerbella.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 319--FOREIGN QUARANTINE NOTICES

0
3. The authority citation for part 319 continues 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.


0
4. A new Sec.  319.56-2ss is added to read as follows:


Sec.  319.56-2ss  Conditions governing the entry of grapes from 
Namibia.

    Grapes (Vitis vinifera) may be imported into the United States from 
Namibia only under the following conditions:
    (a) The grapes must be cold treated for Cryptophlebia leucotreta, 
Ceratitis capitata, Ceratitis rosa, and Epichoristodes acerbella in 
accordance with part 305 of this chapter.
    (b) The grapes must be fumigated for Aleurocanthus spiniferus, 
Apate monachus, Bustomus setulosus, Ceroplastes rusci, Cryptoblabes 
gnidiella, Dischista cincta, Empoasca

[[Page 55090]]

lybica, Eremnus atratus, Eremnus cerealis, Eremnus setulosus, 
Eutetranychus orientalis, Helicoverpa armigera, Icerya seychellarum, 
Macchiademus diplopterus, Oxycarenus hyalinipennis, Pachnoda sinuata, 
Phlyctinus callosus, Scirtothrips aurantii, Scirtothrips dorsalis, 
Spodoptera littoralis, and Tanyrhynchus carinatus in accordance with 
part 305 of this chapter.
    (c) Each shipment of grapes must be accompanied by a phytosanitary 
certificate of inspection issued by the national plant protection 
organization of Namibia bearing the following additional declaration: 
``The grapes in this shipment have been inspected and found free of 
Maconellicoccus hirsutus, Nipaecoccus vastator, Rastrococcus 
iceryoides, Cochlicella ventricosa, and Theba pisana.''
    (d) The grapes may be imported in commercial shipments only.


(Approved by the Office of Management and Budget under control 
number 0579-0300)

    Done in Washington, DC, this 18th day of September 2006.
W. Ron DeHaven,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-7891 Filed 9-20-06; 8:45 am]
BILLING CODE 3410-34-P