[Federal Register Volume 83, Number 61 (Thursday, March 29, 2018)]
[Rules and Regulations]
[Pages 13375-13378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06289]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
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  Federal Register / Vol. 83, No. 61 / Thursday, March 29, 2018 / Rules 
and Regulations  

[[Page 13375]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2015-0015]
RIN 0579-AE13


Importation of Fresh Cherimoya Fruit From Chile Into the United 
States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations to allow the importation of 
fresh cherimoya fruit from Chile into the continental United States in 
accordance with a systems approach as an alternative to the current 
required treatment. Commercial consignments of fresh cherimoya fruit 
are currently authorized entry into all ports of the United States from 
Chile subject to a mandatory soapy water and wax treatment. The systems 
approach includes requirements for production site registration, low 
pest prevalence area certification, post-harvest processing, and 
inspection at the packinghouse. The fruit will also be required to be 
imported in commercial consignments and accompanied by a phytosanitary 
certificate with an additional declaration stating that the consignment 
was produced in accordance with the regulations. Fresh cherimoya fruit 
that does not meet the conditions of the systems approach or is 
imported into locations outside the continental United States will 
continue to be allowed to be imported into the United States subject to 
the current soapy water and wax treatment. This will allow for the 
importation of fresh cherimoya fruit from Chile while continuing to 
provide protection against the introduction of plant pests into the 
continental United States.

DATES: Effective April 30, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
Imports, Regulations, and Manuals, PPQ, APHIS, 4700 River Road Unit 
133, Riverdale, MD 20737-1231; (301) 851-2352.

SUPPLEMENTARY INFORMATION: 

Background

    Under the regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-81, referred to below as the regulations or the 
fruits and vegetables regulations), the Animal and Plant Health 
Inspection Service (APHIS) of the United States Department of 
Agriculture (USDA) 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.
    Currently, pursuant to 7 CFR 319.56-4(a), fresh cherimoya (Annona 
cherimola) fruit from Chile may be imported into the United States 
provided that the shipment has undergone a soapy water and wax 
treatment (T102-b) in accordance with the Plant Protection and 
Quarantine Treatment Manual to mitigate against infestation by the 
false red mite (Brevipalpus chilensis), is accompanied by a permit, and 
subjected to inspection and shipping procedures.
    On April 4, 2016, we published in the Federal Register (81 FR 
19060-19063, Docket No. APHIS-2015-0015) a proposal \1\ to amend the 
regulations to also allow for the importation of fresh cherimoya fruit 
from Chile into the continental United States provided that fruit is 
produced in accordance with a systems approach, as an alternative to 
the currently required treatment.
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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-2015-0015.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
June 3, 2016. We received 26 comments by that date. They were from 
importers, exporters, distributors, organizations, private citizens, 
and representatives of State and foreign governments. Of these, 17 were 
supportive of the proposed action. The remainder are discussed below, 
by topic.

Pest Risk Mitigations

    An issue of concern to several commenters was the potential 
introduction of the false red mite into the United States via infested 
fresh cherimoya fruit from Chile. One commenter stated that the post-
harvest procedures noted in the pest risk assessment (PRA) of blowing 
fruit with compressed air to remove dust and insects, along with 
selection and manual packing of the fruit, would be insufficient to 
reliably remove pests from the pathway of fresh fruit imported into the 
continental United States. Another commenter also was concerned about 
the testing of only two or three fruit samples from each registered 
production site, wanting to ensure that sample sizes would be large 
enough to prevent pest-infested fruit from entering citrus and grape 
production areas in the United States. This commenter suggested 
incorporating an additional checkpoint test for false red mite on 
random fruit samples in the packaging sites prior to clearance for 
export.
    We note that the mitigations mentioned by the first commenter are 
standard industry practices, not the mitigations for false red mite 
(though the standard industry practices may remove some mites from the 
pathway). Chile will be allowed to export fresh cherimoya fruit to the 
United States subject to either a soapy water and wax treatment (as 
currently allowed), or through a systems approach based on low pest 
prevalence. Orchard and packinghouse inspections will be required to 
verify and maintain place of production freedom from false red mite. 
Chile is currently using the same systems approach for a number of 
other commodities (e.g. citrus, baby kiwi, pomegranate, and kiwi) with 
a high success rate, and there have been almost no findings of false 
red mite associated with the importation of susceptible commodities 
from Chile at U.S. ports of entry. Chile will be taking 100 samples 
from each production site to verify low prevalence; these samples will 
undergo pest detection and evaluation using a washing method where the 
fruit will be 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 will 
then be repeated. Then the sieve contents will undergo microscopic

[[Page 13376]]

analysis to detect the presence of false red mite. Each shipment of 
fruit destined for the United States also will be sampled for false red 
mite, usually amounting to 150 fruit, using the same washing method. 
Contrary to the second commenter's assertion, many more than two or 
three samples will be taken to verify that false red mite is not 
present. The sampling will be done in Chile under the supervision of 
APHIS preclearance employees. The sampling rate for the fruit is 
designed to detect a 2 percent or greater infestation rate with 95 
percent confidence.
    One commenter questioned why the alternative conditions for the 
importation of cherimoyas was being proposed and asked if it was a 
reflection of cost, stating that cost-saving measures alone should not 
be adopted if they increase the potential for greater phytosanitary 
risk.
    The original soapy water and wax treatment for cherimoya is older 
than the systems approach. Chile requested the systems approach as an 
option for fresh cherimoya fruit being exported to the continental 
United States, and we have determined that it provides an equivalent 
level of phytosanitary security.
    One commenter expressed support for the proposed rule with the 
caveat that any treatments conducted be equivalent to those required 
domestically, and that any imported fruit not meeting proper standards 
upon arrival in the United States receive additional treatment so as 
not to waste the fruit.
    The Tripartite Agreement on Phytosanitary Cooperation between USDA, 
Chilean Association of Fresh Fruit Exporters, and the Agriculture and 
Livestock Service of the Chilean Ministry of Agriculture has been in 
operation since 1982. This agreement requires that all fruit exported 
to the United States be shipped from Chile with the required 
phytosanitary certification (preclearance program). Under the 
preclearance program, the national plant protection organization (NPPO) 
of Chile must provide an operational workplan to APHIS that details the 
activities that the NPPO of Chile will, subject to APHIS' approval of 
the workplan, carry out to comply with our regulations governing the 
import or export of a specific commodity. Operational workplans 
establish procedures and guidance for the day-to-day operations of 
specific import/export programs, specify how phytosanitary issues are 
dealt with in the exporting country, and make clear who is responsible 
for dealing with those issues. APHIS and the NPPO of Chile have an 
existing operational workplan for commodities imported into the United 
States pursuant to a systems approach; this current operational 
workplan will be revised to reflect the contents of this final rule. 
USDA offices in Chile make possible the supervision of all 
phytosanitary aspects of each export shipment, whether fumigated, 
treated with soapy water and wax, or inspected, thus providing the 
necessary quarantine assurances to the U.S. market. All activities 
related to implementation of system approaches for export are directly 
supervised by USDA personnel. There is sufficient oversight for all 
treatment of fruit bound for export from Chile to the United States.
    If a commodity arrives in the United States and is found to be 
infested with a quarantine pest, treatment will be offered only if 
there is an APHIS-approved treatment available. For fresh cherimoya 
fruit from Chile, the only approved treatment for false red mite is the 
soapy water and wax treatment, which must be performed in the country 
of origin. As there is no APHIS-approved treatment option for infested 
fresh cherimoya fruit at U.S. ports of entry at this time, consignments 
found to be infested with quarantine pests would have to be re-exported 
or destroyed.
    Another commenter requested that fresh cherimoya fruit produced 
under this systems approach not be shipped into certain States due to 
the exotic pest-conducive environments in the Chilean production area, 
which in turn would place a high risk of infestation on the States' 
broad range of fruit and vegetable crops.
    We do not agree with this commenter. Though not unprecedented, 
taking this kind of action for such a minor commodity would be unusual. 
APHIS believes that the proposed systems approach mitigations are 
sufficient to provide phytosanitary protection. As previously 
indicated, the systems approach currently is being used for citrus, 
baby kiwi, pomegranate, and kiwi with a high success rate, with almost 
no interceptions of false red mite at U.S. ports of entry. Furthermore, 
from 1984 to 2013 there have been no interceptions of Brevipalpus 
chilensis on cherimoya from Chile.\2\
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    \2\ See footnote 1 for a link to the Commodity Import Evaluation 
Document.
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    Following post-harvest processing, fresh cherimoya fruit must 
undergo inspection and sampling to check for the presence of false red 
mites. Two commenters stated that checking for the pest presence in 
fruit should be done only in the final stages of the process during the 
preclearance program inspection. One of these commenters also expressed 
concern regarding the use of biometric sampling instead of the 2 
percent currently used for phytosanitary inspections of fresh cherimoya 
fruit. The commenter stated that this represented a larger number of 
fruit and therefore would result in a greater loss of boxes from 
commercial batches if sampled fruit is to be discarded.
    During the preclearance program inspection in Chile, any 
consignments containing false red mite will be rejected and the 
production sites will be removed from the program for the rest of that 
harvest season. Production sites will have to requalify as low 
prevalence before they can ship in the next season. With respect to the 
issue of biometric sampling, the proposed method is not destructive 
sampling. Once the biometric sample is drawn from each consignment of 
fruit, the fruit will be visually inspected for quarantine pests and a 
portion of the biometric sample must be washed with soapy water. The 
collected filtrate after washing must then be microscopically examined 
for the presence of false red mite. Fruit samples that do not contain 
false red mite can simply be washed and placed back into their boxes. 
APHIS will select the sampling rate based on the hypergeometric 
distribution; normally to find a 2 percent pest population, 150 fruits 
will be inspected. Except for very small shipments, a 2 percent 
straight sample will require sampling more fruit than the 
hypergeometric distribution would require. Again, we note that this is 
not destructive sampling, but merely a wash for mite, after which, 
uninfested fruits would be returned to their boxes.

Economic Impacts

    One commenter expressed concern that the proposed regulation does 
not provide a monetary assessment or a prediction of how the regulation 
would impact the price of fruit.
    We do not have information on whether the systems approach allowed 
by this rule will lower the cost of exporting fresh cherimoya fruit 
from Chile to the United States, in comparison to the current soapy 
water and wax treatment for false red mite, or on the extent to which 
any cost savings may be passed on to U.S. importers. We expect cost 
savings due to this rule will be minimal. We also expect any increase 
in the quantity of fresh cherimoya fruit imported from Chile because of 
this rule to be limited, given that over 80 percent of Chile's fresh 
cherimoya fruit exports are already destined for the United States. If 
modest price or quantity

[[Page 13377]]

effects for fresh cherimoya fruit imports from Chile do occur, impacts 
for U.S. producers will be slight because of different marketing 
seasons. As reported by the Agricultural Marketing Resource Center,\3\ 
the marketing season for fresh California cherimoya fruit usually 
starts in January and lasts until May. Fresh cherimoya fruit imports 
from South America (mainly from Chile) are usually in the fall.
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    \3\ This information may be viewed on the internet at http://www.agmrc.org/commodities-products/fruits/cherimoya/.
_____________________________________-

Miscellaneous

    We have made minor, nonsubstantive changes to clarify a few 
provisions in the regulatory text. These editorial changes do not 
substantively affect the import requirements.
    Therefore, for the reasons given in the proposed rule and this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.
Executive Orders 12866 and 13771 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. Further, because this final 
rule is not significant, it is not a regulatory action under Executive 
Order 13771.
    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 website (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Over 80 percent of Chile's fresh cherimoya fruit exports are to the 
United States. Any economic impact of this rule for U.S. entities will 
be minor because the volume of fresh cherimoya fruit imported from 
Chile is not expected to change significantly. Any effect on fresh 
cherimoya fruit prices received by U.S. producers will be all the more 
muted because of the difference in marketing seasons. As previously 
indicated, the Agricultural Marketing Resource Center reports that the 
season for fresh California cherimoya fruit usually starts in January 
and lasts until May. Fresh cherimoya fruit from South America (mainly 
from Chile) usually is imported in the fall.
    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 cherimoya fruit to be imported into 
the continental United States from Chile under a systems approach. 
State and local laws and regulations regarding fresh cherimoya 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 
requirements included in this final rule, which were filed under 
control number 0579-0444, 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
    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 Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

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. Section 319.56-82 is added to read as follows:


Sec.  319.56-82  Fresh cherimoya from Chile.

    Fresh cherimoya (Annona cherimola) fruit may be imported into the 
United States from Chile only under the following conditions and in 
accordance with all other applicable provisions of this subpart. These 
conditions are designed to prevent the introduction of the following 
quarantine pest: Brevipalpus chilensis mites.
    (a) Commercial consignments. The fresh cherimoya fruit may be 
imported in commercial consignments only.
    (b) The risks presented by Brevipalpus chilensis mites must be 
addressed in one of the following ways:
    (1) Importation into the United States. The fresh cherimoya fruit 
are subject to treatment and certification consisting of:
    (i) A soapy water and wax treatment, in accordance with part 305 of 
this chapter.
    (ii) Each consignment of fresh cherimoya fruit must be accompanied 
by documentation to validate foreign site preclearance inspection after 
soapy water and wax treatment completed in Chile; or
    (2) Importation into the Continental United States. The fresh 
cherimoya fruit are subject to a systems approach consisting of the 
following:
    (i) Production site registration. The production site where the 
fruit is grown must be registered with the national plant protection 
organization (NPPO) of Chile. Harvested cherimoya must be placed in 
field cartons or containers that are marked to show the official 
registration of the production site. Registration must be renewed 
annually.
    (ii) 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 leaves 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 
leaves 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 B. chilensis mites. If a single live B.

[[Page 13378]]

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. Fruit from those production sites 
that do not meet the requirements for certification as low-prevalence 
production sites may still be imported into the United States subject 
to treatment as listed in paragraph (b)(1) of this section.
    (iii) Post-harvest processing. After harvest, all damaged or 
diseased fruits must be culled at the packinghouse and remaining fruit 
must be packed into new, clean boxes, crates, or other APHIS-approved 
packing containers.
    (iv) 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. Fresh cherimoya fruit can be shipped to the 
continental United States under the systems approach only if the 
consignment passes inspection. Any consignment that does not meet the 
requirements of this paragraph for inspection can still be imported 
into the United States subject to treatment as listed in paragraph 
(b)(1) of this section. Inspection procedures are as follows:
    (A) 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.
    (B) 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. 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 for the remainder 
of the harvest season.
    (v) Phytosanitary certificate. Each consignment of fresh cherimoya 
fruit 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 Sec.  319.56-82(b)(2).

(Approved by the Office of Management and Budget under control number 
0579-0444)

    Done in Washington, DC, this 23rd day of March 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-06289 Filed 3-28-18; 8:45 am]
 BILLING CODE 3410-34-P