[Federal Register Volume 73, Number 41 (Friday, February 29, 2008)]
[Rules and Regulations]
[Pages 10971-10973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3901]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 41 / Friday, February 29, 2008 / 
Rules and Regulations  

[[Page 10971]]



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: Final rule.

-----------------------------------------------------------------------

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

DATES: Effective Date: March 31, 2008.

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

    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.
    On December 11, 2007, we published in the Federal Register (72 FR 
70237-70240, Docket No. APHIS-2007-0116), a proposal \1\ to amend the 
regulations by eliminating a treatment requirement for Ya pears 
imported from Shandong Province, China; clarifying the conditions that 
apply to the importation of sand pears from the Republic of Korea and 
Japan; and clarifying the distinction between plant parts that would be 
considered plant litter or debris and those that would not.
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0116.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 30 days ending on 
January 10, 2008. We received two comments by that date, both from tree 
fruit industry groups. The comments are discussed below by topic.
    One commenter expressed frustration with what he characterized as 
technical barriers that are preventing the exportation to China of 
pears grown in the United States and stated that such barriers should 
be removed before we amend the regulations to benefit Chinese pear 
growers.
    As a signatory to the International Plant Protection Convention, 
the United States has agreed not to prescribe or adopt phytosanitary 
measures concerning the importation of plants, plant products, and 
other regulated articles unless such measures are made necessary by 
phytosanitary considerations and are technically justified. Given that, 
we do not believe it would be appropriate to delay our removal of a 
treatment requirement that has been shown to be unnecessary in order to 
force reciprocal market access.
    The other commenter stated that, while the proposed definition of 
plant litter and debris seems straightforward, the Department of 
Homeland Security's Customs and Border Protection (CBP) inspectors will 
need to be trained to recognize the portions of plants permitted entry 
from those that are not permitted entry. The commenter asked whether 
APHIS and CBP will provide this type of training prior to 
implementation of the new regulation.
    We work closely with CBP to ensure that inspectors at the ports of 
entry are provided with the training and support they need to carry out 
their duties. This includes ensuring that inspectors are provided 
accurate and up-to-date information as to which portions of plants are 
approved for entry and which are not.
    The same commenter also requested further clarification of the term 
``freedom'' as it is used in Sec.  319.56-3(a) to indicate that fruits 
and vegetables imported under the subpart must be free of plant litter 
or debris. Specifically, the commenter asked whether, as a practical 
matter, freedom meant zero litter or debris or would a generic 
tolerance be used, below which the shipment would be considered 
practically free of plant litter or debris.
    We do not employ a generic tolerance for plant litter or debris. 
While some allowances may on occasion be made for litter or debris 
appearing in a consignment, decisions as to whether such allowances 
should be made are based on inspectional guidelines and depend on a 
number of factors, including the type of litter or debris and the pest 
risks known to be associated with it, the nature of the commodity, and 
its end use.
    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 the 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.
    In this document, we are amending 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 changes, only the elimination of the 
treatment requirement could be expected to result in any economic 
effects.
    Removing the cold treatment requirement for Ya pears imported from 
Shandong Province will reduce

[[Page 10972]]

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 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 could, under this 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 will likely 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 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 this 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 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 will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State or 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 final 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.

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

0
2. Section 319.56-2 is amended as follows:
0
a. By removing the definition for plant debris.
0
b. By adding, in alphabetical order, definitions for 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 pediculus, 
pedicel, peduncle, raceme, or panicle, that are normally attached to 
fruits or vegetables.
* * * * *

0
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.
* * * * *

0
4. Section 319.56-13 is amended as follows:
0
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:
0
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) * * *

[[Page 10973]]



----------------------------------------------------------------------------------------------------------------
                                                                                                  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     Fruit.............  (b)(5)(ix).
                                                       var. culta.
                                  Strawberry........  Fragaria spp......  Fruit.............  (b)(5)(i).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    (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]

0
5. Section 319.56-29 is amended by removing paragraph (b) and 
redesignating paragraph (c) as paragraph (b).

    Done in Washington, DC, this 25th day of February 2008.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E8-3901 Filed 2-28-08; 8:45 am]
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