[Federal Register Volume 72, Number 237 (Tuesday, December 11, 2007)]
[Proposed Rules]
[Pages 70237-70240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23957]


 ========================================================================
 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. 72, No. 237 / Tuesday, December 11, 2007 / 
Proposed Rules  

[[Page 70237]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2007-0116]
RIN 0579-AC64


Importation of Fruits and Vegetables

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations pertaining to the 
importation of fruits and vegetables to eliminate a treatment 
requirement for Ya pears imported from Shandong Province, China; to 
clarify the conditions that apply to the importation of sand pears from 
the Republic of Korea and Japan; and to clarify the distinction between 
plant parts that would be considered to be plant litter or debris and 
those that would not. These proposed changes would eliminate a 
treatment requirement that no longer appears to be necessary and would 
clarify some existing provisions in order to make the regulations 
easier to understand and implement.

DATES: We will consider all comments that we receive on or before 
January 10, 2008.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov, select ``Animal and Plant Health Inspection 
Service'' from the agency drop-down menu, then click ``Submit.'' In the 
Docket ID column, select APHIS-2007-0116 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 Docket No. APHIS-
2007-0116, 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 Docket No. APHIS-2007-0116.
    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: Mr. Alex Belano, Import Specialist, 
Commodity Import Analysis and Operation, PPQ, APHIS, 4700 River Road 
Unit 133, Riverdale, MD 20737-1231; (301) 734-5333.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in 7 CFR part 319 prohibit or restrict the 
importation of certain plants and plant products into the United States 
to prevent the introduction of plant pests. Under the regulations in 
``Subpart--Fruits and Vegetables'' (7 CFR 319.56-1 to 319.56-47, 
referred to below as the regulations), the Animal and Plant Health 
Inspection Service (APHIS) prohibits or restricts the importation of 
fruits and vegetables into the United States from certain parts of the 
world to prevent plant pests from being introduced into and spread 
within the United States. In this document, we are proposing to make 
several amendments to the regulations. The proposed amendments are 
discussed below by topic.

Definition of Plant Debris

    In Sec.  319.56-3, ``General requirements for all imported fruits 
and vegetables,'' paragraph (a) requires that ``All fruits and 
vegetables imported under this subpart, whether in commercial or 
noncommercial consignments, must be free from plant debris, as defined 
in Sec.  319.56-2.'' In Sec.  319.56-2, plant debris is defined as 
``Detached leaves, twigs, or other portions of plants, or plant litter 
or rubbish as distinguished from approved parts of clean fruits and 
vegetables, or other commercial articles.'' While that definition does 
make reference to ``approved parts of clean fruits and vegetables,'' 
the definition and the regulations in Sec.  319.56-3(a) may not 
adequately communicate the fact that there are also parts of clean 
fruits and vegetables that are not approved for entry.
    In order to make that distinction clear, we are proposing to remove 
the current definition of plant debris and replace it with separate 
definitions of plant litter and debris and portions of plants. Plant 
litter and debris would be defined as: ``Discarded or decaying organic 
matter; detached leaves, twigs, or stems that do not add commercial 
value to the product.'' Portions of plants would be defined as: 
``Stalks or stems, including the pedicel, peduncle, raceme, or panicle, 
that are normally attached to fruits or vegetables.'' At the same time, 
we would amend Sec.  319.56-3(a) so that it requires all imported 
fruits and vegetable to be free of plant litter or debris and free of 
any portions of plants that are specifically prohibited in the 
regulations. We believe these amendments would make our requirements 
clearer and more enforceable.

Importation of Ya Pears From China

    The regulations in Sec.  319.56-29 govern the importation of Ya 
variety pears from China. Under the regulations in that section, Ya 
pears may be imported from the Hebei and Shandong Provinces of China if 
they have been grown, harvested, and packed for export under certain 
conditions, and if the national plant protection organization (NPPO) of 
China certifies that those conditions have been met. Ya pears from 
Shandong Province are also required to undergo cold treatment for the 
Oriental fruit fly (Bactrocera dorsalis).
    The regulations had previously required that Ya pears from Hebei 
Province also undergo cold treatment, but we removed that requirement 
in a final rule published in the Federal Register on June 10, 2003 (68 
FR 34517-34519, Docket No. 02-084-2). Our removal of the cold treatment

[[Page 70238]]

requirement for Ya pears from Hebei Province was based on trapping 
results and on climatological and biological considerations. In that 
June 2003 final rule, in response to a comment, we stated that we would 
consider removing the cold treatment requirement for Ya pears from 
Shandong Province if China provided APHIS with data similar to the data 
submitted for Hebei Province indicating that Oriental fruit fly is not 
present in Shandong Province.
    China has now requested that we amend the regulations to remove the 
cold treatment requirement for Ya pears from Shandong requirement. 
China has conducted fruit fly trapping in Shandong Province to monitor 
for the presence of fruit flies. A total of 943 traps were used to 
survey a variety of areas including orchards, fruit markets, seaports, 
airports, etc. Trapping data for 3 years, from 2000 to 2002, show that 
no fruit flies were trapped. In addition to the trapping data, China's 
NPPO provided us with published research \1\ showing that, based on 
developmental biology of Bactrocera dorsalis and because of low winter 
temperatures, large areas of China, including Shandong Province, are 
unsuitable habitat for the Oriental fruit fly.
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    \1\ Zhan, K., S. Zhao, S. Zhu, W. Zhou, and N. Wang (2006). 
``Study on the viability of Bactrocera dorsalis in China.'' J. of S. 
China Agricultural University 27(4): 21-25.
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    The evidence supporting the removal of the cold treatment 
requirement is discussed in more detail in a risk management document 
that has been prepared in response to China's request. The document may 
be viewed on the Regulations.gov Web site or in our reading room (see 
ADDRESSES above), and copies may be obtained by calling or writing to 
the person listed under FOR FURTHER INFORMATION CONTACT. Based on our 
consideration of the information provided by China and the analysis 
provided in our risk management document, we are proposing to amend 
Sec.  319.56-29 to remove the cold treatment requirement for Ya pears 
from Shandong Province.

Importation of Sand Pears From the Republic of Korea and Japan

    The regulations in paragraph (a) of Sec.  319.56-13 list a number 
of fruits and vegetables that may be imported from various countries 
subject to the specific requirements listed in paragraph (b) of that 
section as well as the general requirements in Sec.  319.56-3 that 
apply to all imported fruits and vegetables. Among the articles listed 
in the table is sand pear (Pyrus pyrifolia var. culta) from Japan and 
the Republic of Korea. The entries for sand pears from each country 
were added when we reorganized the regulations in a final rule 
published in the Federal Register on July 18, 2007 (72 FR 39482-39528, 
Docket No. APHIS-2005-0106).
    Prior to that final rule, the importation of sand pears from Japan 
and the Republic of Korea had been authorized under permit and the 
conditions of their entry were listed in the fruits and vegetables 
manual.\2\ Under the approach we used in revising the fruits and 
vegetables regulations, however, we listed the sand pears in the 
regulations because consignments of sand pears, except sand pears 
imported into Hawaii, were required to be precleared in Japan and the 
Republic of Korea prior to their exportation to the United States.
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    \2\ See http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/fv.pdf.
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    When we added the listings for sand pears from Japan and the 
Republic of Korea to the table in Sec.  319.56-13(a), we neglected to 
include a note that the preclearance requirement does not apply to sand 
pears imported into Hawaii from Japan or the Republic of Korea. While 
the fruits and vegetables manual continues to list the non-precleared 
sand pears as eligible for importation into Hawaii, the lack of a 
reference to that exception in the regulations has caused some 
confusion. Therefore, we are proposing to amend Sec.  319.56-
13(b)(5)(ix) so that it clearly states that the preclearance 
requirement does not apply to sand pears imported into Hawaii from 
Japan or the Republic of Korea.
    We are also proposing to amend the entry for the Republic of Korea 
in the table in Sec.  319.56-13(a) so that it appears as ``Korea, 
Republic of.'' This change would make the manner in which we list that 
country consistent with the manner in which the other countries are 
listed in the table.

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.
    In this document, we are proposing to amend the regulations 
pertaining to the importation of fruits and vegetables to eliminate a 
treatment requirement for Ya pears imported from Shandong Province, 
China; to clarify the conditions that apply to the importation of sand 
pears from the Republic of Korea and Japan; and to clarify the 
distinction between plant parts that would be considered to be plant 
litter or debris and those that would not. Of these proposed changes, 
only the elimination of the treatment requirement would be expected to 
result in any economic effects.
    Removing the cold treatment requirement for Ya pears imported from 
Shandong Province would reduce importers' shipping expenses and may 
also affect domestic pear growers, especially those who produce Ya and 
other Asian pears, and the wholesalers and distributors of these 
commodities. However, for both foreign and domestic pear producers, the 
proposed change in requirements is expected to have a very limited 
effect on the supply and demand for pears overall.
    China is the world's largest producer of pears and accounts for 65 
percent of world pear production. According to statistics for marketing 
year 2005 for three varieties of Chinese pears, including the Ya 
variety, Hebei Province produced the largest volume of pears, 
accounting for about 29 percent of pear production in China. Shandong 
Province produced about 9 percent of China's pears during this time. 
Although China's Ya pear exports are not classified by the originating 
province, the removal of the cold treatment requirement of Ya pears 
produced in Shandong Province may be expected to affect about 25 
percent of total U.S. imports of Ya pears from China, assuming that the 
quantities exported to the United States from the two provinces reflect 
their relative levels of production.
    The shipping expenses of importers seeking to import Ya pears from 
Shandong Province would, under this proposed rule, be reduced by the 
amount of the expense of the cold treatment. This amount is estimated 
to be approximately $0.06 per kilogram of pears. Since the number of Ya 
pears imported from Shandong Province is estimated to be approximately 
one-fourth of total Ya pear imports from China, the net impact on the 
average price of Ya pears would be considerably smaller than $0.06 per 
kilogram. If the cost reduction associated with the removal of the cold 
treatment requirement affects the retail price of Ya pears in the 
United States, it would be minimal.
    Under the criteria established by the Small Business 
Administration, fruit merchant wholesalers (North American Industry 
Classification System code 424480) must have 100 or fewer employees to 
be considered small entities. In 2002, there were 5,376 fresh

[[Page 70239]]

fruit and vegetable merchant wholesalers in the United States with a 
total of 110,578 paid employees, or, on the average, 21 paid employees 
per establishment. Therefore, domestic fruit merchant wholesalers that 
may be affected by the proposed rule are predominantly small entities.
    The 2002 Census of Agriculture estimates that there are 
approximately 11,000 pear growers distributed throughout the United 
States, and that the vast majority of pear growers operate in orchards 
smaller than 250 acres, and with less than $750,000 in annual receipts. 
The average annual sales value of pear growers is estimated to be 
approximately $24,416 per grower. Based on this data, it is most likely 
that pear growers in the United States are predominantly small 
entities.
    In the United States, Asian pears represent a small share of the 
pear industry. In California, which contains the largest number of 
Asian pear growers in the country, Asian pears constituted about 7 
percent of the total harvested acreage in 2006. Of the Asian pear 
varieties produced in the United States, Ya pears are estimated to make 
up a very small percentage of the total number. The value of domestic 
Ya pears is estimated at less than $1 million.
    The expected economic effect of removing the cold treatment 
requirement for Ya pears from Shandong Province is minor. Therefore, 
this proposed rule is expected to have little effect on importers or 
producers of Ya pears in the United States.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

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

    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 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.
    2. Section 319.56-2 is amended as follows:
    a. By removing the definition of plant debris.
    b. By adding, in alphabetical order, definitions of plant litter 
and debris and portions of plants to read as set forth below.


Sec.  319.56-2  Definitions.

* * * * *
    Plant litter and debris. Discarded or decaying organic matter; 
detached leaves, twigs, or stems that do not add commercial value to 
the product.
* * * * *
    Portions of plants. Stalks or stems, including the pedicel, 
peduncle, raceme, or panicle, that are normally attached to fruits or 
vegetables.
* * * * *
    3. In Sec.  319.56-3, paragraph (a) is revised to read as follows:


Sec.  319.56-3  General requirements for all imported fruits and 
vegetables.

* * * * *
    (a) Freedom from unauthorized plant parts. All fruits and 
vegetables imported under this subpart, whether in commercial or 
noncommercial consignments, must be free from plant litter or debris 
and free of any portions of plants that are specifically prohibited in 
the regulations in this subpart.
* * * * *
    4. Section 319.56-13 is amended as follows:
    a. In the table in paragraph (a), by removing the entry for 
``Republic of Korea'' and by adding, in alphabetical order, an entry 
for ``Korea, Republic of'' to read as set forth below:
    b. In paragraph (b), by revising paragraph (b)(5)(ix) to read as 
set forth below.


Sec.  319.56-13  Fruits and vegetables allowed importation subject to 
specified conditions.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                                   Additional
   Country/locality of origin       Common name         Botanical name        Plant part(s)       requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Korea, Republic of.............  Dasheen..........  Colocasia spp.,         Root.............  (b)(2)(iv).
                                                     Alocasia spp., and
                                                     Xanthosoma spp..
                                 Sand pear........  Pyrus pyrifolia var.    Fruit............  (b)(5)(ix).
                                                     culta.
                                 Strawberry.......  Fragaria spp..........  Fruit............  (b)(5)(i).
 
                                                  * * * * * * *
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* * * * *
    (b) * * *
    (5) * * *
    (ix) Except for sand pears entering Hawaii, only precleared 
consignments are authorized. The consignment must be accompanied by a 
PPQ Form 203 signed by the APHIS inspector on site in the exporting 
country.
* * * * *


Sec.  319.56-29  [Amended]

    4. Section 319.56-29 is amended by removing paragraph (b) and 
redesignating paragraph (c) as paragraph (b).


[[Page 70240]]


    Done in Washington, DC, this 6th day of December 2007.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E7-23957 Filed 12-10-07; 8:45 am]
BILLING CODE 3410-34-P