[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Proposed Rules]
[Pages 15225-15228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6492]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2010-0018]
RIN 0579-AD37


Importation of Fresh Baby Kiwi From Chile Under a Systems 
Approach

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 into the continental United States 
of baby kiwi fruit from Chile, subject to a systems approach. Under 
this systems approach, the fruit would have to be grown in a place of 
production that is registered with the Government of Chile and 
certified as having a low prevalence of Brevipalpus chilensis. The 
fruit would have to undergo pre-harvest sampling at the registered 
production site. Following post-harvest processing, the fruit would 
have to be inspected in Chile at an approved inspection site. Each 
consignment of fruit would have to be accompanied by a phytosanitary 
certificate with an additional declaration stating that the fruit had 
been found free of Brevipalpus chilensis based on field and 
packinghouse inspections. This proposed rule would allow for the safe 
importation of fresh baby kiwi from Chile using mitigation measures 
other than fumigation with methyl bromide.

DATES: We will consider all comments that we receive on or before May 
20, 2011.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0018 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2010-0018, 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-2010-0018.
    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

[[Page 15226]]

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. David B. Lamb, Import Specialist, 
Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, 
Unit 133, Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56-
1 through 319.56-50, 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.
    Currently, the importation into the United States of fresh baby 
kiwi (Actinidia arguta) from Chile is allowed if the fruit is fumigated 
with methyl bromide. The Animal and Plant Health Inspection Service 
(APHIS) also received a request from the national plant protection 
organization (NPPO) of Chile to allow the fresh baby kiwi fruit from 
Chile to be imported into the continental United States (the lower 48 
States, the District of Columbia, and Alaska) without methyl bromide 
fumigation, but subject instead to a systems approach. As part of our 
evaluation of Chile's request, we prepared a pest risk assessment (PRA) 
and a risk management document. Copies of the PRA and the 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 instructions for accessing Regulations.gov).
    The PRA, titled ``Pest Risk Assessment for Fresh Fruits of Baby 
Kiwi (Actinidia arguta) from Chile Imported into the Continental United 
States'' (May 2008), evaluates the risks associated with the 
importation of baby kiwi into the continental United States from Chile. 
The risk management document lists the phytosanitary measures necessary 
to ensure the safe importation into the United States of baby kiwi from 
Chile.
    The PRA identifies one quarantine pest that could be introduced 
into the United States in consignments of baby kiwi from Chile: 
Brevipalpus chilensis (false red mite). A quarantine pest is defined in 
Sec.  319.56-2 as ``a pest of potential economic importance to the area 
endangered thereby and not yet present there, or present but not widely 
distributed and being officially controlled.'' In the PRA, the 
likelihood and consequences of introducing this pest to the United 
States are considered, and B. chilensis is rated as having a medium 
pest risk potential. Pests receiving a rating within the medium range 
may necessitate specific phytosanitary measures in addition to standard 
port-of-entry inspection of the commodity being imported into the 
United States.
    Based on the findings of our PRA and risk management document, we 
are proposing to allow the importation of fresh baby kiwi from Chile 
into the continental United States, subject to a systems approach. 
Under a systems approach, a set of phytosanitary conditions, at least 
two of which have an independent effect in mitigating the pest risk 
associated with the movement of commodities, is specified, whereby 
fruits and vegetables may be imported into the United States from 
countries that are not free of certain plant pests. The systems 
approach for fresh baby kiwi from Chile would require the fruit to be 
grown in a place of production that is registered with the NPPO of 
Chile. The fruit would have to undergo pre-harvest sampling at the 
registered production site under the direction of the NPPO of Chile 
and, once harvested, placed in field cartons or containers marked to 
allow for traceback to the production site. The NPPO of Chile would 
present a list of production sites certified as having a low prevalence 
of B. chilensis to APHIS. Following post-harvest processing, the fruit 
would have to be inspected in Chile at an APHIS-approved inspection 
site under the direction of APHIS inspectors in coordination with the 
NPPO of Chile. Each consignment of the fruit would have to be 
accompanied by a phytosanitary certificate with an additional 
declaration stating that the fruit had been found free of B. chilensis 
based on field and packinghouse inspections.
    The mitigation measures in the proposed systems approach are 
discussed in greater detail below, as well as in the risk management 
document.

Production Site Registration

    The production site where the fruit is grown would have to be 
registered with the NPPO of Chile. Harvested baby kiwi would have to be 
placed in field cartons or containers that are marked to show the 
official registration number of the production site. Registration would 
have to be renewed annually.
    Registration of production sites with the NPPO of Chile and marking 
of field cartons or containers with the registration numbers would 
allow traceback to the production site if pest problems were found on 
fruit shipped to the United States. Problem production sites could then 
be removed from the program until further mitigation measures were 
taken to reduce pest populations.

Low-Prevalence Production Site Certification

    Between 1 and 30 days prior to harvest, random samples of fruit 
would have to be collected from each registered production site under 
the direction of the NPPO of Chile. These samples would have to undergo 
a pest detection and evaluation method as follows: The fruit would have 
to be washed using a flushing method, placed in a 20-mesh sieve on top 
of a 200-mesh sieve, sprinkled with a liquid soap and water solution, 
washed with water at high pressure, and washed with water at low 
pressure. The process would then be repeated. The contents of the 200-
mesh sieve would then be placed on a petri dish and analyzed for the 
presence of live B. chilensis mites. If a single live B. chilensis mite 
were found, the production site would not qualify for certification as 
a low-prevalence production site. Each production site would have only 
one opportunity per season to qualify as a low-prevalence production 
site, and certification of low prevalence would be valid for one 
harvest season only. The NPPO of Chile would be required to present a 
list of certified production sites to APHIS.
    Production site low-prevalence certification would identify problem 
production sites and prevent the shipment of fruit with B. chilensis 
mites from such sites. This mite sampling method has been tested in 
Chile and found to be successful in identifying grape and citrus 
production areas with high and low populations of mites.

Post-Harvest Processing

    After harvest, all damaged or diseased fruits would have to be 
culled at the packinghouse, and the remaining fruit would have to be 
packed into new, clean boxes, crates, or other APHIS-approved packing 
containers. Each container would have to have a label identifying the 
registered production site where the fruit originated and the packing 
shed where it was packed.

[[Page 15227]]

    Post-harvest processing procedures, such as culling damaged fruit 
and sampling for mites, would remove fruit that could contain pests 
from consignments being shipped to the United States. Culling is a 
standard procedure to produce quality fruit without pests. Labeling of 
containers to identify both production site and packing shed would aid 
in traceback.

Phytosanitary Inspection

    The fruit would have to be inspected in Chile at an APHIS-approved 
inspection site under the direction of APHIS inspectors in coordination 
with the NPPO of Chile following any post-harvest processing. A 
biometric sample would have to be drawn from each consignment. In order 
to be eligible for shipment to the continental United States, the fruit 
in the consignment would have to pass inspection by meeting the 
following requirements:
     Fruit presented for inspection would have to be identified 
in the shipping documents accompanying each lot of fruit to specify the 
production site(s) where the fruit was produced and the packing shed(s) 
where the fruit was processed. This identification would have to be 
maintained until the fruit is released for entry into the United 
States.
     The biometric sample, referred to above, of the boxes, 
crates, or other APHIS-approved packing containers from each 
consignment would be selected by the NPPO of Chile, and the fruit from 
these boxes, crates, or other APHIS-approved packing containers would 
be visually inspected for quarantine pests. A portion of the fruit 
would have to be washed with soapy water and the collected filtrate 
microscopically examined for B. chilensis. If a single live B. 
chilensis mite were found during the inspection process, the certified 
low-prevalence production site where the fruit was grown would lose its 
certification.
    The proposed requirements for the identification in shipping 
documents of the baby kiwi to their production sites and packing sheds 
would aid in traceback if pests were found. The proposed requirements 
for visual inspection and biometric sampling of the fruit would provide 
additional layers of protection against the possibility of baby kiwi 
infested with quarantine pests being shipped from Chile to the United 
States. These methods have proved effective when employed to inspect 
consignments of citrus from Chile.

Phytosanitary Certificate

    Each consignment of fruit would have to be accompanied by a 
phytosanitary certificate issued by the NPPO of Chile that contains an 
additional declaration stating that the fruit in the consignment was 
inspected and found free of B. chilensis based on field and 
packinghouse inspections.
    Requiring a phytosanitary certificate would ensure that the NPPO of 
Chile has inspected the fruit and certified that the fruit meets the 
conditions for export to the United States.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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 accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    This proposed rule would allow the importation into the continental 
United States of baby kiwi fruit from Chile, subject to a systems 
approach. The systems approach would provide an alternative to 
fumigation with methyl bromide of baby kiwi imported from Chile into 
the continental United States.
    Domestic growers of fresh baby kiwi fruit are the entities that 
could be affected by this proposed rule. The currently available 
information indicates that almost all U.S. growers of baby kiwi fruit 
are small in size, by the standards of the Small Business 
Administration.
    The impact of fresh baby kiwi fruit imports from Chile is expected 
to be minimal for domestic producers due to timing differences (baby 
kiwi would likely be imported from Chile during the off-season for U.S. 
producers) and the small quantity expected to be imported. Therefore, 
we do not expect the proposed rule to have any significant impact on 
U.S. baby kiwi fruit growers, regardless of the size of operation.
    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 12988

    This proposed rule would allow fresh baby kiwi to be imported into 
the continental United States from Chile, subject to a systems 
approach. If this proposed rule is adopted, State and local laws and 
regulations regarding fresh baby kiwi imported under this rule would be 
preempted while the fruit is in foreign commerce. Fresh baby kiwi 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 Docket No. APHIS-
2010-0018. Please send a copy of your comments to: (1) Docket No. 
APHIS-2010-0018, 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 allow the importation into the continental 
United States of baby kiwi fruit from Chile, subject to a systems 
approach. For the systems approach to work effectively, certain 
information-collection activities must be performed. These activities 
include the registration of production sites with the NPPO of Chile, 
the post-harvest labeling of containers so that the fruit can be 
identified back to the registered production site, and the completion 
of phytosanitary certificates.
    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:

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    (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 0.253434 hours per response.
    Respondents: Kiwi fruit production sites, packinghouses, and the 
NPPO of Chile.
    Estimated annual number of respondents: 4.
    Estimated annual number of responses per respondent: 91.
    Estimated annual number of responses: 364.
    Estimated total annual burden on respondents: 92.25 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) 
851-2908.

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 proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

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. A new Sec.  319.56-51 is added to read as follows:


Sec.  319.56-51  Fresh baby kiwi from Chile.

    Fresh baby kiwi (Actinidia arguta) may be imported into the 
continental United States from Chile under the following conditions:
    (a) Production site registration. The production site where the 
fruit is grown must be registered with the national plant protection 
organization (NPPO) of Chile. Harvested baby kiwi must be placed in 
field cartons or containers that are marked to show the official 
registration number of the production site. Registration must be 
renewed annually.
    (b) Low-prevalence production site certification. The fruit must 
originate from a low-prevalence production site to be imported under 
the conditions in this section. Between 1 and 30 days prior to harvest, 
random samples of fruit must be collected from each registered 
production site under the direction of the NPPO of Chile. These samples 
must undergo a pest detection and evaluation method as follows: The 
fruit must be washed using a flushing method, placed in a 20-mesh sieve 
on top of a 200-mesh sieve, sprinkled with a liquid soap and water 
solution, washed with water at high pressure, and washed with water at 
low pressure. The process must then be repeated. The contents of the 
200-mesh sieve must then be placed on a petri dish and analyzed for the 
presence of live Brevipalpus chilensis mites. If a single live B. 
chilensis mite is found, the production site will not qualify for 
certification as a low-prevalence production site. Each production site 
may have only one opportunity per season to qualify as a low-prevalence 
production site, and certification of low prevalence will be valid for 
one harvest season only. The NPPO of Chile will present a list of 
certified production sites to APHIS.
    (c) Post-harvest processing. After harvest, all damaged or diseased 
fruits must be culled at the packinghouse and must be packed into new, 
clean boxes, crates, or other APHIS-approved packing containers. Each 
container must have a label identifying the registered production site 
where the fruit originated and the packing shed where it was packed.
    (d) Phytosanitary inspection. Fruit must be inspected in Chile at 
an APHIS-approved inspection site under the direction of APHIS 
inspectors in coordination with the NPPO of Chile following any post-
harvest processing. A biometric sample must be drawn and examined from 
each consignment. Baby kiwi in any consignment may be shipped to the 
continental United States under the conditions of this section only if 
the consignment passes inspection as follows:
    (1) Fruit presented for inspection must be identified in the 
shipping documents accompanying each lot of fruit to specify the 
production site or sites in which the fruit was produced and the 
packing shed or sheds in which the fruit was processed. This 
identification must be maintained until the fruit is released for entry 
into the United States.
    (2) A biometric sample of the boxes, crates, or other APHIS-
approved packing containers from each consignment will be selected by 
the NPPO of Chile, and the fruit from these boxes, crates, or other 
APHIS-approved packing containers will be visually inspected for 
quarantine pests. A portion of the fruit must be washed with soapy 
water and the collected filtrate must be microscopically examined for 
B. chilensis. If a single live B. chilensis mite is found during the 
inspection process, the certified low-prevalence production site where 
the fruit was grown will lose its certification.
    (e) Phytosanitary certificate. Each consignment of fresh baby kiwi 
must be accompanied by a phytosanitary certificate issued by the NPPO 
of Chile that contains an additional declaration stating that the fruit 
in the consignment was inspected and found free of Brevipalpus 
chilensis based on field and packinghouse inspections.

    Done in Washington, DC, this 15th day of March 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-6492 Filed 3-18-11; 8:45 am]
BILLING CODE 3410-34-P