[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Proposed Rules]
[Pages 81401-81404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33201]


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 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. 76, No. 249 / Wednesday, December 28, 2011 / 
Proposed Rules  

[[Page 81401]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2009-0084]
RIN 0579-AD56


Importation of Litchi Fruit From Australia

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to allow, under certain conditions, the 
importation of commercial shipments of litchi fruit from Australia into 
the continental United States, except Florida. As a condition of entry, 
the litchi fruit would have to be grown in production areas that are 
registered with and monitored by the national plant protection 
organization of Australia and treated with irradiation at a dose of 400 
gray for plant pests of the class Insecta, except pupae and adults of 
the order Lepidoptera, and subject to inspection. The fruits would also 
have to be accompanied by a phytosanitary certificate with an 
additional declaration stating that the conditions for importation have 
been met. Additionally, litchi would not be imported into or 
distributed to the State of Florida, due to the presence of litchi rust 
mite in Australia. This action would allow for the importation of 
litchi fruit from Australia into the continental United States, except 
Florida, while continuing to provide protection against the 
introduction of quarantine pests.

DATES: We will consider all comments that we receive on or before 
February 27, 2012.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2009-0084-0001.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2009-0084, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2009-
0084 or in our reading room, which 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) 6902817 before coming.

FOR FURTHER INFORMATION CONTACT: Ms. Dorothy C. Wayson, Regulatory 
Coordination Specialist, PPQ, APHIS, 4700 River Road Unit 141, 
Riverdale, MD 20737-1231; (301) 734-0772.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-54, 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.
    The national plant protection organization (NPPO) of Australia has 
requested that the Animal and Plant Health Inspection Service (APHIS) 
amend the regulations to allow fresh litchi fruit (Litchi chinensis 
Sonn.) from Australia to be imported into the continental United 
States. As part of our evaluation of Australia's request, we prepared a 
pest risk assessment (PRA) and a risk management document. Copies of 
the PRA and risk management document may be obtained from the person 
listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site or in our reading room (see ADDRESSES above 
for a link to Regulations.gov and information on the location and hours 
of the reading room).
    As part of our evaluation of that request, we prepared a PRA titled 
``Importation of Fresh Litchi, Litchi chinensis Sonn. Fruit from 
Australia into the Continental United States'' (November 2008). That 
PRA evaluates the risks associated with the importation of litchi fruit 
with up to 5 millimeters of stem into the continental United States 
from Australia. The threshold allowing for a maximum of 5 millimeters 
of stem on the imported litchi fruit was included in Australia's 
request and therefore established as the allowable limit in the PRA.
    The PRA identified 15 pests of quarantine significance present in 
Australia that could be introduced into the United States through the 
importation of litchi fruit, including 3 fruit flies, 7 lepidopteran 
pests, 2 scales, 2 insect pests, and 1 mite.

Fruit flies

    Jarvis's fruit fly (Bactrocera jarvisi).
    Queensland fruit fly (Bactrocera tryoni).
    Mediterranean fruit fly (Ceratitis capitata).

Lepidopteran pests

    Yellow peach moth (Conogethes punctiferalis).
    Litchi fruit moth (Cryptophlebia ombrodelta).
    Orange fruit borer (Isotenes miserana).
    The moth Cateremna quadriguttella.
    Bright cornelian (Deudorix diovis).
    Dull cornelian (Deudorix epijarbas dido).
    Flower caterpillar (Phycita leucomilta).

Scales

    Red wax scale (Ceroplastes rubens).
    Green scale (Coccus viridis).

Insect pests

    Spherical mealybug (Nipaecoccus viridis).
    Passionvine mealybug (Planococcus minor).

Mite

    Litchi hairy mite (Aceria litchii).

Proposed Systems Approach

    Based on the risk management document, APHIS has determined that 
measures beyond the standard port of arrival inspection are required to 
mitigate the risks posed by these plant pests. Therefore, we are 
proposing to allow the importation of litchi from Australia into the 
United States only if they are produced in accordance with a

[[Page 81402]]

systems approach to mitigate pest risk as outlined below. We are 
proposing to add the systems approach to the regulations in a new Sec.  
319.56-55 governing the importation of litchi from Australia.

Place of Production Requirements

    Paragraph (a) of proposed Sec.  319.56-55 would require that litchi 
fruit be grown in approved places of production that are registered 
with and monitored by the NPPO of Australia.

Treatment

    Paragraph (b) of proposed Sec.  319.56-55 would require that litchi 
fruit be treated with a minimum absorbed irradiation dose of 400 gray 
in accordance with the provisions of Sec.  305.9 and the PPQ Treatment 
Manual (table 3-8-1). This is the established generic dose for all 
insect pests except pupae and adults of the order Lepidoptera. Seven of 
the insect pests of concern, yellow peach moth, litchi fruit moth, 
orange fruit borer, the moth Cateremna quadriguttella, bright 
cornelian, dull cornelian, and flower caterpillar, belong to the order 
Lepidoptera, and the 400 gray dose is not approved to treat pupae and 
adults of the order Lepidoptera. However, the life stages of concern 
for these pests are the eggs and the larvae, because the eggs and the 
larvae of these species are internal feeders and thus difficult to 
detect through inspection; the 400 gray dose is approved to treat those 
stages of the life cycle for Lepidoptera pests. The pupae and adults of 
these species are external feeders, and we are confident that 
inspection can detect them. Within part 305, Sec.  305.9 contains a 
number of other requirements for irradiation treatment, including 
monitoring by APHIS inspectors and safeguarding of the fruit. Treatment 
could be conducted at an approved facility in Australia or in the 
United States.
    Paragraph (c) would require that each shipment of fruit be 
accompanied by a phytosanitary certificate issued by the NPPO of 
Australia containing an additional declaration stating that the 
conditions for importation have been met.

Distribution Restrictions

    The required irradiation treatment would not mitigate the risks 
posed by the litchi hairy mite (Aceria litchii), and because of the 
mite's microscopic size, inspection alone is not considered sufficient 
to mitigate the risk of introduction into the United States. Based on 
the distribution and reported host range of this pest, we estimate it 
could establish in the continental United States in USDA Plant 
Hardiness Zones 9 through 11. Neither of its two hosts, longan or 
litchi, occur naturally in the United States; however, both litchis and 
longans are commercially grown in the State of Florida and the climatic 
conditions in Florida present the highest risk for establishment of the 
pest. For this reason, our regulations generally prohibit the movement 
of litchi into Florida from areas where the litchi hairy mite is 
present. Litchi from China, India, and Thailand that are imported under 
Sec.  319.56-13 and Sec.  319.56-47, respectively, are also not allowed 
to be imported or distributed in Florida.
    Because the litchi hairy mite is not present in Florida and because 
we have consistently prohibited host movement into Florida from areas 
where that pest is present, we propose to prohibit the importation and 
distribution of litchi from Australia into the State of Florida. 
Accordingly, paragraph Sec.  319.56-55 (d) would stipulate that all 
cartons of litchi would have to be stamped ``Not for importation into 
or distribution in FL.''

Commercial Shipments

    Paragraph (e) would state that only commercial consignments of 
litchi fruit would be allowed to be imported. Produce grown 
commercially is less likely to be infested with plant pests than 
noncommercial shipments. Noncommercial shipments are more prone to 
infestations because the commodity is often ripe to overripe, could be 
of a variety with unknown susceptibility to pests, and is often grown 
with little or no pest control. Commercial shipments, as defined in 
Sec.  319.56-1, are shipments of fruits and vegetables that an 
inspector identifies as having been produced for sale and distribution 
in mass markets. Identification of a particular shipment as commercial 
is based on a variety of indicators, including, but not limited to, the 
quantity of produce, the type of packaging, identification of a grower 
or packinghouse on the packaging, and documents consigning the shipment 
to a wholesaler or retailer.
    Commercially produced fruit in Australia are already subjected to 
standard commercial cultural and post-harvest practices that reduce the 
risk associated with plant pests. While not specifically required by 
this proposal, standard cultural practices other than the twice yearly 
application of broad spectrum fungicides (e.g., the regular use of 
sanitation measures, irrigation, fertilization, and pest control) help 
to further ensure that the pests of concern do not follow the pathway. 
All export orchards are registered production sites with traceback 
capability. Harvested fruit is moved to the packinghouses in a manner 
that would preclude reinfestation by pests. Culling of blemished and 
damaged fruit occurs in the field and during the post-harvest 
commercial processing of the fruit.
    The regulations in Sec.  319.56-3 provide that all imported fruits 
and vegetables shall be inspected, and shall be subject to such 
disinfection at the port of first arrival as may be required by an 
inspector. The pre-export inspection conducted by APHIS personnel as 
part of preclearance activities in the country of export typically 
serves to satisfy the inspection requirement. Section 319.56-3 also 
provides that any shipment of fruits and vegetables may be refused 
entry if the shipment is so infested with plant pests that an inspector 
determines that it cannot be cleaned or treated. We believe that the 
proposed conditions described above, as well as all other applicable 
requirements in Sec.  319.56-3, would be adequate to prevent the 
introduction of plant pests into the continental United States, except 
Florida, with litchi fruit imported from Australia.
    The proposed conditions described above for the importation of 
litchi fruit from Australia into the continental United States, except 
Florida, would be added to the fruits and vegetables regulations as a 
new Sec.  319.56-55.

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 is in response to a request from Australia to 
export fresh litchis to all States in the United States except Florida. 
Litchi is grown in Florida, Hawaii, and California, and U.S. production 
is estimated to be about 500 metric tons (MT) per year. Based on 
available information, most, if not all, litchi farms are small 
entities.
    The United States imports litchis from such countries as Taiwan, 
China, Israel, and Mexico. Australia expects to export about 400 MT of 
litchis to the United States annually. This amount is

[[Page 81403]]

equivalent to less than 3 percent of the quantity of litchis that was 
imported by the United States in 2004, the latest year for which we 
have data. Most likely, the quantity of litchis expected to be imported 
from Australia is of even lesser significance when compared to current 
litchi imports by the United States, given the expanding demand for 
this fruit.
    Any litchi price declines that might result from this rule would be 
insignificant, especially if, as is likely, at least some litchi 
imports from Australia were to displace imports from other countries. 
Moreover, given that the agricultural seasons in the Southern 
Hemisphere are generally the opposite of those in the Northern 
Hemisphere, the proposed imports from Australia likely would not 
directly compete with U.S. litchi production.
    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 litchi fruit to be imported into the 
United States from Australia. If this proposed rule is adopted, State 
and local laws and regulations regarding litchi fruit imported under 
this rule would be preempted while the fruit is in foreign commerce. 
Fresh fruits and vegetables 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-
2009-0084. Please send a copy of your comments to: (1) Docket No. 
APHIS-2009-0084, 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.
    APHIS is proposing to amend the fruits and vegetables regulations 
to allow, under certain conditions, the importation into the United 
States of commercial consignments of litchi fruit from Australia. The 
conditions for the importation of litchi fruit from Australia include 
requirements for pest exclusion at the production site, irradiation 
treatment, pest-excluding packinghouse procedures and port-of-entry 
inspections. The litchi would also be required to be accompanied by a 
phytosanitary certificate issued by the national plant protection 
organization (NPPO) of Australia with an additional declaration 
confirming that the litchi had been produced in accordance with the 
proposed requirements. This action would allow for the importation of 
litchi fruit from Australia while continuing to provide protection 
against the introduction of injurious plant pests into the United 
States.
    Implementing this rule will require the completion of phytosanitary 
certificates, compliance agreements, preclearance workplans, treatment 
records and trust fund agreements. 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:
    (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 0.5455 hours per response.
    Respondents: Foreign business and NPPO of Australia.
    Estimated annual number of respondents: 2.
    Estimated annual number of responses per respondent: 11.
    Estimated annual number of responses: 22.
    Estimated total annual burden on respondents: 12 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 EGovernment 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.  319.56-55 is added to read as follows:


Sec.  319.56-55  Litchi from Australia (including Tasmania).

    Litchi (Litchi chinensis) with up to 5 millimeters of stem may be 
imported into the continental United States from Australia only under 
the following conditions and in accordance with all other applicable 
provisions of this subpart:
    (a) Litchi must be grown in a production area that is registered 
with and monitored by the national plant protection organization (NPPO) 
of Australia.
    (b) The litchi must be treated for plant pests of the class 
Insecta, except pupae

[[Page 81404]]

and adults of the order Lepidoptera, with irradiation in accordance 
with Sec.  305.9 of this chapter. Treatment must be conducted prior to 
importation of the fruits into the United States.
    (c) Each shipment of litchi must be accompanied by a phytosanitary 
certificate of inspection issued by the NPPO of Australia with an 
additional declaration stating that the litchi were treated with 
irradiation as described in the Plant Protection and Quarantine 
Treatment Manual.
    (d) In addition to meeting the labeling requirements in Part 305 of 
this chapter, cartons in which litchi are packed must be stamped ``Not 
for importation into or distribution in FL.''
    (e) The litchi may be imported in commercial consignments only.

    Done in Washington, DC, this 19th day of December 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-33201 Filed 12-27-11; 8:45 am]
BILLING CODE 3410-34-P