[Federal Register Volume 76, Number 206 (Tuesday, October 25, 2011)]
[Rules and Regulations]
[Pages 65933-65935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27577]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 206 / Tuesday, October 25, 2011 / 
Rules and Regulations  

[[Page 65933]]



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: Final rule.

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SUMMARY: We are amending 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 must 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 must undergo pre-harvest sampling 
at the registered production site. Following post-harvest processing, 
the fruit must be inspected in Chile at an approved inspection site. 
Each consignment of fruit must 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 final rule allows for the safe 
importation of fresh baby kiwi from Chile using mitigation measures 
other than fumigation with methyl bromide.

DATES: Effective Date: November 25, 2011.

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 319.56-52, 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.
    Previously, under the regulations, the importation into the United 
States of fresh baby kiwi (Actinidia arguta) from Chile was allowed 
only if the fruit was fumigated with methyl bromide. On March 21, 2011, 
however, we published in the Federal Register (76 FR 15225-15228, 
Docket No. APHIS-2010-0018) a proposal \1\ 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. We proposed that 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.
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    \1\ To view the proposed rule, the PRA, the RMD, the economic 
analysis, and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0018.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
May 20, 2011. We received 23 comments by that date. They were from 
private citizens, growers, shippers, trade associations, a State 
department of agriculture, industry groups, and the Government of 
Chile. Most of the commenters supported the proposed rule, with only 
one opposing it outright and another supporting it with reservations. 
The issues raised by the commenters are discussed below.
    One commenter, while generally supportive of the proposed rule, 
expressed concern about how the imports of baby kiwi from Chile that 
would be allowed under this rulemaking could affect domestic kiwi 
growers. The commenter suggested that we should have provided a more 
extensive discussion of that potential impact, including statistics, in 
the preamble to the March 2011 proposed rule. The commenter did not 
present any new information, however.
    In the economic analysis that accompanied the proposed rule and was 
summarized in the preamble, we concluded that we expect the impact of 
fresh baby kiwi fruit imports from Chile 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 that we anticipated would be imported. The full economic 
analysis, which was conducted in accordance with Executive Order 12866 
and the Regulatory Flexibility Act and was posted on the 
Regulations.gov Web site along with the proposed rule, featured a more 
extensive discussion of the possible economic impact of the rulemaking, 
including the potential impact on small growers. As the commenter did 
not present any evidence to the contrary, we stand by our original 
determination that the economic impact of the rulemaking on domestic 
growers of baby kiwi is likely to be minimal.
    A commenter from a State Department of Agriculture stated that 
shipments of baby kiwi from Chile should not be allowed entry into 
Florida until the effectiveness of the phytosanitary measures required 
under the proposed systems approach has been demonstrated through their 
use on baby kiwi imported from Chile into lower-risk States.
    We have determined, for the reasons described in the risk 
management document (RMD) that accompanied the March 2011 proposed 
rule, that the measures specified in the RMD will effectively mitigate 
the risk associated with the importation of baby kiwi from Chile. The 
commenter did not provide any evidence suggesting that the mitigations 
are not effective. Therefore, we are not taking the action requested by 
the commenter.
    For greater clarity, we are making a change in this final rule to 
the requirement for an additional declaration on the phytosanitary 
certificate accompanying shipments of

[[Page 65934]]

baby kiwi from Chile. As originally proposed, the additional 
declaration had to state that the fruit in the consignment was 
inspected and found free of Brevipalpus chilensis. This final rule 
provides that the additional declaration must also state that the fruit 
was grown, packed, and shipped in accordance with the requirements of 
the systems approach.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This final 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 
on the Regulations.gov Web site (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    This final rule amends the regulations to allow the importation of 
fresh baby kiwi fruit from Chile into the continental United States 
under a systems approach. The systems approach provides an alternative 
to fumigation with methyl bromide of baby kiwi imported from Chile into 
the continental United States.
    The impact of fresh baby kiwi fruit imports from Chile will be 
minimal for domestic producers due to timing differences (baby kiwi are 
likely to be imported from Chile during the off-season for U.S. 
producers) and the small quantity expected to be imported. Although 
most U.S. growers of baby kiwi fruit are small entities by the 
standards of the Small Business Administration, our analysis concludes 
that the effects of this rule on U.S. baby kiwi fruit producers, 
regardless of their size, will be minimal.
    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 baby kiwi to be imported into the 
continental United States from Chile. State and local laws and 
regulations regarding baby kiwi imported under this rule will 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 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.

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 0579-0374.

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) 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 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. A new Sec.  319.56-53 is added to read as follows:


Sec.  319.56-53  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

[[Page 65935]]

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 and was grown, packed, and shipped in accordance with the 
requirements of 7 CFR 319.56-53.

(Approved by the Office of Management and Budget under control 
number 0579-0374)

    Done in Washington, DC, this 19th day of October 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-27577 Filed 10-24-11; 8:45 am]
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