[Federal Register Volume 81, Number 68 (Friday, April 8, 2016)]
[Rules and Regulations]
[Pages 20525-20528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08191]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0085]
RIN 0579-AE04


Importation of Fresh Andean Blackberry and Raspberry Fruit From 
Ecuador Into the Continental United States

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 of fresh Andean blackberry and raspberry fruit from 
Ecuador into the continental United States. As a condition of entry, 
the fruit will have to be produced in accordance with a systems 
approach that includes requirements for importation in commercial 
consignments from a pest free production site within a certified low 
pest prevalence area for fruit flies, and pest monitoring and trapping. 
The fruit will also have to be accompanied by a phytosanitary 
certificate issued by the national plant protection organization of 
Ecuador bearing an additional declaration stating that the consignment 
was produced and prepared for export in accordance with the 
requirements of the systems approach. This action will allow for the 
importation of fresh Andean blackberry and raspberry fruit from Ecuador 
while continuing to provide protection against the introduction of 
quarantine pests into the continental United States.

DATES: Effective May 9, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, M.S., Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
Imports, Regulations and Manuals, PPQ, APHIS, (301) 851-2352; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Under the regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-74, referred to below as the regulations), the 
Animal and Plant Health Inspection Service (APHIS) of the U.S. 
Department of Agriculture 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 April 24, 2015, we published in the Federal Register (80 FR 
22927-22930, Docket No. APHIS-2014-0085) a proposal \1\ to amend the 
regulations to allow importation of Andean blackberry (Rubus glaucus 
Benth) and raspberry (Rubus idaeus Linnaeus) fruit into the continental 
United States from Ecuador subject to a systems approach. We also 
prepared a pest risk assessment (PRA) and a risk management document 
(RMD). The PRA evaluates the risks associated with the importation of 
fresh Andean blackberry and raspberry fruit from Ecuador into the 
continental United States. The RMD draws upon the findings of the PRA 
to determine the phytosanitary measures necessary to ensure the safe 
importation into the continental United States of fresh Andean 
blackberry and raspberry fruit from Ecuador.
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    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0085.
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    In the proposed rule, we noted that the PRA rated three plant pests 
as having a high pest risk potential for following the pathway of fresh 
Andean blackberry and raspberry fruit from Ecuador into the continental 
United States: Anastrepha fraterculus (South American fruit fly), 
Ceratitis capitata (Mediterranean fruit fly, or Medfly), and Copitarsia 
decolora, a moth.
    We determined in the PRA that measures beyond standard port of 
arrival inspection will adequately mitigate the risks posed by these 
plant pests and proposed a systems approach that includes requirements 
for importation in commercial consignments from a pest free production 
site within a certified low pest prevalence area for fruit flies, pest 
monitoring, and pest trapping. We also proposed that the fruit be 
imported in commercial consignments only and accompanied by a 
phytosanitary certificate issued by the national plant protection 
organization (NPPO) of Ecuador stating that the consignment was 
produced and prepared for export in accordance with the systems 
approach.
    We solicited comments concerning our proposal for 60 days ending 
June 23, 2015. We received five comments during the comment period from 
members of the public and an employee of a foreign NPPO. The comments 
are discussed below.

General Comments

    Two commenters stated that the importation of fresh Andean 
blackberry and raspberry fruit into the continental United States 
should not be allowed due to the associated plant pest risk. One of 
these commenters added that production of blackberry and raspberry 
fruit in the United States, along with existing import agreements with 
other countries, renders importation of Andean blackberry and raspberry 
fruit from Ecuador unnecessary.
    We are making no changes in response to these comments. Under the 
Plant Protection Act (7 U.S.C. 7701 et seq.), we have the authority to 
prohibit or restrict the importation of plants and plant products only 
when necessary to prevent the introduction into, or dissemination of 
plant pests or noxious weeds within, the United States. We have 
determined that fresh Andean blackberry and raspberry fruit from 
Ecuador may be safely imported into the continental United States under 
the

[[Page 20526]]

conditions we are adding to the regulations.

Mitigations for Medfly

    One commenter stated that while the PRA lists Medfly as having a 
high pest risk potential for following the pathway of Andean 
blackberries and raspberries imported into the continental United 
States from Ecuador, the production site requirements we propose do not 
require mitigation for Medfly beyond standard commercial production and 
inspection. The commenter requested that we include an additional 
mitigation measure for Medfly and that we gradually reduce the 
requirements to commercial production and inspection only.
    Another commenter observed that we currently do not require 
mitigations for Medfly beyond standard commercial production and 
inspection for raspberries imported from other countries with this 
pest, including Colombia, Costa Rica, El Salvador, France, Guatemala, 
Honduras, Nicaragua, and Panama. The commenter asked why no additional 
mitigations exist to prevent Medfly from following the pathway of 
raspberries imported into the continental United States from these 
countries and from Ecuador. The commenter stated that raspberries from 
all production sites in these countries should be inspected and undergo 
additional mitigation if they have the potential for bringing Medfly to 
the continental United States.
    We respect the concerns of these commenters regarding the potential 
introduction of Medfly into the continental United States. However, as 
we noted in the RMD and the proposed rule, Andean blackberries and 
raspberries have been established in the scientific literature as being 
poor hosts for both Medfly and Anastrepha fraterculus. We also noted 
that there has never been an interception of fruit flies from the 
family Tephritidae, which includes Medfly as well as Anastrepha 
fraterculus, in any commercial shipments of fresh Andean blackberries 
or raspberries from the countries cited by the commenter. For these 
reasons, APHIS considers standard commercial production and inspection 
practices to be a sufficient mitigation for Medfly in Andean 
blackberries and raspberries imported from countries where the pest is 
present.
    We also noted in the proposed rule that a slightly stronger host 
status potential exists for Anastrepha fraterculus in Andean 
blackberries and raspberries, and as a result included a requirement 
for field trapping in order to maintain low pest prevalence for this 
pest. Furthermore, we added to the proposed rule the requirement that 
if a single Anastrepha fraterculus, Medfly, or Copitarsia decolora is 
detected in a consignment, the consignment may not be exported to the 
United States.

Production Site Requirements

    One commenter stated that requiring the production sites of Andean 
blackberry and raspberry fruit to be free of Anastrepha fraterculus 
within an area of low prevalence is excessive. The commenter stated 
that the production sites are over 2,800 meters in altitude with an 
average temperature of 13 [deg]C, resulting in conditions too adverse 
for the establishment of Anastrepha fraterculus. The commenter also 
stated that production centers for Andean blackberries and raspberries 
are in areas of Ecuador isolated from other fruit crop production. The 
commenter requested that we remove the requirement that production 
sites for Andean blackberries and raspberries must be within areas of 
low prevalence.
    We agree with the commenter that given the low temperature and high 
altitude, the areas in Ecuador in which blackberry and raspberry 
production sites are located are generally inhospitable to the 
establishment of Anastrepha fraterculus. However, within Ecuador there 
is frequent commercial and consumer transport of fruit into these 
production areas from areas of lower altitude with established 
populations of Anastrepha fraterculus. Given the risk of Anastrepha 
fraterculus moving to production areas via host fruit, we will retain 
the requirement for trapping at each production site to ensure that the 
sites are free of Anastrepha fraterculus and remain areas of low pest 
prevalence. Details of trapping requirements will be included in the 
operational workplan and can be adjusted if necessary based on the 
frequency of pest interceptions.

Economic Impacts

    One commenter, concerned about potential economic impacts to 
raspberry and blackberry growers in the United States resulting from 
imports of Andean raspberry and blackberry from Ecuador, requested that 
we provide more data on the potential impact to these growers.
    In the economic analysis accompanying this rule, we gathered and 
analyzed data sufficient to determine that this action will not have a 
significant economic impact on small domestic growers. Between 2008 and 
2012, the United States imported 37.22 million pounds of fresh 
raspberries and between 2011 and 2013 imported 63 million pounds of 
fresh blackberries. Comparing the volume level of these imports with 
the proposed maximum level of imports from Ecuador, the Ecuadorian 
import share would be less than 0.4 percent of the U.S. import share 
for these fruits.
    The same commenter asked what costs APHIS will incur in monitoring 
and auditing Ecuador's implementation of the systems approach.
    APHIS conducts monitoring of production areas and trapping 
practices, audits of trap records, and other tasks necessary to ensure 
that the NPPO of Ecuador is implementing the systems approach. The 
costs of conducting these tasks are included in the APHIS budget.
    The commenter also asked if the costs would be feasible for 
Ecuadorian blackberry and raspberry farmers and whether the regulation 
imposes burdens on these farmers.
    Under Executive Order 12866 and the Regulatory Flexibility Act, we 
are required to analyze the potential regulatory and economic effects 
of this action on small entities within the United States. We therefore 
have not researched the economic effects of this action on Ecuadorian 
blackberry and raspberry farmers.
    Therefore, for the reasons given in the proposed rule, we are 
adopting the proposed rule as a final rule, without change.
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 
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).
    The final rule will allow importation into the continental United 
States of fresh Andean blackberry (Rubus glaucus Benth.) and raspberry 
(Rubus idaeus L.) fruit from Ecuador. We have information on the total 
quantity of Andean blackberry and raspberry fruit expected to be 
imported from Ecuador yearly (less than 180 metric tons (MT)), but not 
the amount by species. Also, the Andean blackberry is more closely 
comparable to the loganberry (a blackberry-raspberry hybrid) than it is 
to the common blackberry (Rubus fruticosus). For these reasons, we base

[[Page 20527]]

our analysis on aggregate quantities of Rubus species commercially 
produced by the United States.
    The majority of U.S. raspberry and blackberry farms are in three 
States--California, Oregon, and Washington. They are classified within 
the North American Industry Classification System under ``Berry except 
Strawberry Farming'' (NAICS 111334). For this industry classification, 
a business is considered to be a small entity if its annual receipts 
are not more than $750,000. The average 2012 market value of crops sold 
by farms in this category was less than $135,000. We infer that most 
fresh raspberry and blackberry fruit production is by small entities.
    Over the 5-year period 2008-2012, U.S. raspberry and blackberry 
production for the fresh market averaged about 96 million pounds and 4 
million pounds per year, respectively, for a total of about 100 million 
pounds, or about 45,372 MT. Expected annual imports from Ecuador of 
less than 180 MT will be the equivalent of less than 0.4 percent of 
U.S. production.
    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 fresh Andean blackberry and raspberry fruit 
to be imported into the continental United States from Ecuador. State 
and local laws and regulations regarding fresh Andean blackberry and 
raspberry fruit imported under this rule will be preempted while the 
fruit is in foreign commerce. Fresh fruits 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 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 final rule, which were 
filed under 0579-0435, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.
E-Government Act Compliance
    APHIS 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 Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, 
at (301) 851-2727.

Lists 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. Section 319.56-75 is added to read as follows:


Sec.  319.56-75.  Andean blackberries and raspberries from Ecuador.

    Andean blackberries (Rubus glaucus Benth) and raspberries (Rubus 
idaeus Linnaeus) may be imported into the continental United States 
from Ecuador under the conditions described in this section and other 
applicable provisions of this subpart. These conditions are designed to 
prevent the introduction of the following quarantine pests: Anastrepha 
fraterculus, Ceratitis capitata, and Copitarsia decolora.
    (a) General requirements. (1) The national plant protection 
organization (NPPO) of Ecuador must provide an operational workplan to 
APHIS that details the systems approach to pest mitigations and other 
specific requirements that the NPPO of Ecuador will, subject to APHIS' 
approval of the workplan, carry out to meet the requirements of this 
section.
    (2) APHIS will be directly involved with the NPPO of Ecuador in 
monitoring and auditing implementation of the systems approach.
    (3) Andean blackberry and raspberry fruit from Ecuador may be 
imported into the continental United States in commercial consignments 
only.
    (b) Production site requirements. (1) Each production site must 
carry out the phytosanitary measures specified in the APHIS-approved 
operational workplan.
    (2) All places of production that participate in the export program 
must be approved by and registered with the NPPO of Ecuador. APHIS 
reserves the right to conduct oversight visits in the event of pest 
interceptions or other problems.
    (3) The NPPO of Ecuador or their designee must conduct a fruit fly 
trapping program for the detection of Anastrepha fraterculus at each 
production site in accordance with the operational workplan. If a 
designee conducts the program, the designation must be detailed in the 
operational workplan. The approved designee can be a contracted entity, 
a coalition of growers, or the growers themselves.
    (4) The NPPO of Ecuador must maintain records of trap placement, 
trap checks, and any captures of Anastrepha fraterculus. The trapping 
records must be maintained for APHIS' review for at least 1 year.
    (5) The NPPO of Ecuador must maintain a quality control program, 
approved by APHIS, to monitor or audit the trapping program in 
accordance with the operational workplan.
    (c) Packinghouse requirements. (1) Packinghouses must be registered 
with the NPPO of Ecuador and comply with the requirements as specified 
in the operational workplan.
    (2) While in use for exporting Andean blackberries and raspberries 
to the continental United States, the packinghouses may only accept 
fruit from registered production sites.
    (3) If a single Anastrepha fraterculus, Ceratitis capitata, or 
Copitarsia decolora is detected by the NPPO in a consignment, the 
consignment may not be exported to the United States. Furthermore, if a 
single Anastrepha fraterculus or Ceratitis capitata is detected in a 
consignment at the port of entry and traced back to a registered 
production site, that production site will lose its ability to export 
Andean blackberries and raspberries to the continental United States 
until APHIS and the NPPO of Ecuador mutually determine that risk 
mitigation is achieved.
    (d) Phytosanitary certificate. Each consignment of Andean 
blackberries and/or raspberries must be accompanied by a phytosanitary 
certificate issued by the NPPO of Ecuador and bear an additional 
declaration stating that the consignment was produced and

[[Page 20528]]

prepared for export in accordance with the requirements of Sec.  
319.56-75.

(Approved by the Office of Management and Budget under control 
number 0579-0435)


     Done in Washington, DC, this 5th day of April 2016.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-08191 Filed 4-7-16; 8:45 a.m.]
 BILLING CODE 3410-34-P