[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Rules and Regulations]
[Pages 49191-49193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20096]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2016-0009]


Notification of Decision To Authorize the Importation of Fresh 
Cape Gooseberry Fruit From Ecuador to the Continental United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rulemaking action; notification of decision to import.

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SUMMARY: We are advising the public of our decision to authorize the 
importation into the continental United States of fresh cape gooseberry 
fruit from Ecuador. Based on the findings of a pest risk analysis, 
which we made available to the public for review and comment, we have 
determined that the application of one or more designated phytosanitary 
measures will be sufficient to mitigate the risks of introducing or 
disseminating plant pests or noxious weeds via the importation of fresh 
cape gooseberry fruit from Ecuador.

DATES: The articles covered by this notification may be authorized for 
importation after September 19, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, M.S., Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 
851-2352.

SUPPLEMENTARY INFORMATION: 

Background

    Under the regulations in ``Subpart L--Fruits and Vegetables'' (7 
CFR 319.56-1 through 319.56-12, referred to below as the regulations), 
the Animal and Plant Health Inspection Service (APHIS) prohibits or 
restricts 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.
    Section 319.56-4 of the regulations contains a performance-based 
process for approving the importation of commodities that, based on the 
findings of a pest risk analysis (PRA), can be safely imported subject 
to one or more of the designated phytosanitary measures listed in 
paragraph (b) of that section. Under that process, APHIS then publishes 
a notice in the Federal Register announcing the availability of the PRA 
that evaluates the risks associated with the importation of a 
particular fruit or vegetable.
    On April 20, 2018, we published in the Federal Register (83 FR 
17503-17506, Docket No. APHIS-2016-0009) a proposal \1\ to amend the 
regulations by allowing for the importation of commercially produced 
fresh cape gooseberry fruit (Physalis peruviana) from Ecuador into the 
continental United States.
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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-2016-0009.
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    We solicited comments concerning our proposal for 60 days ending 
June 19, 2018. We received two comments by that date. They were from 
the national plant protection organization (NPPO) of Ecuador and a 
State department of agriculture and are discussed below.
    One commenter stated that U.S. stakeholders from those areas 
potentially affected by any pest or disease outbreak from imported 
commodities should be invited to participate in site visits prior to 
the issuance of any proposals such as the one finalized by this 
document.
    APHIS is committed to a transparent process and an inclusive role 
for stakeholders in our risk analysis process. However, since this 
comment relates to the structure of APHIS' overall risk analysis 
process, and not to the importation of fresh cape gooseberry

[[Page 49192]]

fruit from Ecuador, it is outside the scope of the proposed action.
    The PRA that accompanied the proposed rule identified Ceratitis 
capitata (Medfly) as the one quarantine pest that could be introduced 
into the United States in consignments of fresh cape gooseberry fruit 
from Ecuador. The commenter observed several areas of phytosanitary 
risk as outlined in the PRA:
     Due to the short distance between Ecuador and the 
continental United States, the duration of low temperatures during 
transport does not control, reduce, or eliminate this pest species. 
Fruit fly larvae within fruits can survive shipments when exported 
without mitigating treatment, as it is shown by numerous interceptions 
at U.S. ports-of-entry with other fruits.
     Fruit fly larvae within fruits can survive shipments when 
exported without mitigating treatment, as it is shown by numerous 
interceptions at U.S. ports-of-entry with other fruits.
     Ecuador does not have a point-of-origin protocol for fruit 
inspection. In addition to this, internal feeders, such as fruit flies, 
are difficult to detect during non-targeted USDA inspection procedures 
at ports-of-entry.
    While it is true that the aspects of the PRA highlighted by the 
commenter led us to classify the pest risk potential associated with 
Medfly as high, pest risk potential is a baseline estimate of the risks 
associated with importation of the commodity in the absence of 
phytosanitary mitigation measures beyond standard post-harvest 
processing. That is why we are only allowing for the importation of 
fresh cape gooseberry fruit from Ecuador into the continental United 
States if it is produced under a systems approach or subject to cold 
treatment or irradiation in accordance with the Plant Protection and 
Quarantine (PPQ) Treatment Manual \2\ and 7 CFR part 305. These 
measures effectively mitigate the risks described in the PRA and 
pointed out by the commenter.
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    \2\ The PPQ Treatment Manual may be found on the internet at 
https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf.
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    Only commercial consignments of fresh cape gooseberry fruit from 
Ecuador will be allowed to be imported into the continental United 
States. The commenter posited that if non-commercially produced fresh 
cape gooseberry fruit were mixed with or mistaken for commercially 
produced fresh cape gooseberry fruit, the likelihood of Medfly 
infestation would be very high.
    Since fresh cape gooseberry fruit from non-registered places of 
production present a greater pest risk than does fruit grown in 
registered places of production, we believe that it is unlikely that 
the growers and packers in a registered place of production would allow 
their entire export operation to be jeopardized by allowing potentially 
infested fruit from nonregistered places of production to be commingled 
with their export-quality fruit. Additionally, this rule requires the 
NPPO of Ecuador to provide an operational workplan to APHIS regarding 
the day-to-day administration of the export program for cape 
gooseberries from Ecuador, and also requires APHIS approval of the 
operational workplan. We will not approve an operational workplan 
unless it provides safeguards against the commingling of commercially 
produced and non-commercially produced cape gooseberries. Finally, we 
note that all shipments of cape gooseberries are subject to inspection 
at ports of entry into the United States in accordance with our general 
requirements for the importation of fruits and vegetables, which are 
found in Sec.  319.56-3. Among other benefits, port-of-entry 
inspections allow us to verify an exporting country's adherence to the 
terms of the regulations on an ongoing basis.
    We proposed to require the use of trapping to monitor the places of 
production within low prevalence areas as part of the systems approach 
to mitigate the risk posed by Medfly. While we did not specify the 
intervals at which the fruit fly traps would be required to be placed 
to demonstrate place of production freedom from Medfly in the proposed 
rule, the risk management document (RMD) did provide a recommended 
trapping protocol.
    The NPPO of Ecuador suggested an additional fruit fly trapping 
protocol, scaled specifically for smaller production sites, which would 
allow more producers to potentially participate in the export program.
    While the RMD provides a recommended trapping protocol, the 
specific trapping requirements will be set forth in the required 
operational workplan established between APHIS and the NPPO of Ecuador, 
and therefore may differ from the recommendations set out in the RMD. 
We will evaluate the trapping protocol suggested by the NPPO during the 
development of the operational workplan.
    Fresh cape gooseberry fruit that comes from a place of production 
that does not qualify as a pest free place of production in an area of 
low pest prevalence may still be exported to the continental United 
States subject to cold treatment or irradiation treatment in accordance 
with the PPQ Treatment Manual and 7 CFR part 305. Another commenter 
said that it was not clear whether these treatments would be 
administered in Ecuador, while consignments are in transit, or upon 
arrival in the United States.
    Under the regulations, treatment may occur at any of the stages 
identified by the commenter. However, because Ecuador does not 
currently have APHIS-approved irradiation or cold treatment facilities, 
and because the journey from Ecuador to the United States is generally 
significantly shorter than the length of time necessary for the 
required cold treatment, we anticipate that most treatments will be 
administered in the United States.
    The commenter concluded that, due to the risk factors described by 
the PRA, fresh cape gooseberry fruit from Ecuador should not be allowed 
into the State of Florida and other ports of entry south of the 39th 
parallel given that the climate in those areas is conducive to the 
establishment of Medfly.
    We have determined, for the reasons described in the RMD that 
accompanied the proposed rule, that the measures specified in the RMD 
will effectively mitigate the risk associated with the importation of 
fresh cape gooseberry fruit from Ecuador. 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.
    Finally, we note that the proposed rule was issued prior to the 
October 15, 2018, effective date of a final rule \3\ that revised the 
regulations in Sec.  [thinsp]319.56-4 by broadening an existing 
performance standard to provide for approval of all new fruits and 
vegetables for importation into the United States using a notice-based 
process. That final rule also specified that region- or commodity-
specific phytosanitary requirements for fruits and vegetables would no 
longer be found in the regulations, but instead in APHIS' Fruits and 
Vegetables Import Requirements database (FAVIR). With those changes to 
the regulations, we cannot issue the final regulations as contemplated 
in our April 2018 proposed rule and are therefore discontinuing that 
rulemaking without a final rule. Instead, it is necessary for us to 
finalize this action through the issuance of a notification.
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    \3\ To view the final rule, go to https://www.regulations.gov/docket?D=APHIS-2010-0082.
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    Therefore, in accordance with the regulations in Sec.  
[thinsp]319.56-4(c)(3)(iii), we are announcing our decision to

[[Page 49193]]

authorize the importation into the continental United States of fresh 
cape gooseberry fruit from Ecuador subject to the following 
phytosanitary measures, which will be listed in FAVIR, available at 
https://epermits.aphis.usda.gov/manual:
     The NPPO of Ecuador must provide an operational workplan 
to APHIS that details the activities that the NPPO of Ecuador will, 
subject to APHIS' approval of the workplan, carry out to comply with 
the phytosanitary requirements. APHIS will be directly involved with 
the NPPO of Ecuador in monitoring and auditing implementation of the 
systems approach.
     The fresh cape gooseberry fruit may be imported in 
commercial consignments only.
     The production site where the fruit is grown must be 
registered with the NPPO of Ecuador.
     Harvested fresh cape gooseberry fruit must be placed in 
field cartons or containers that are marked to show the official 
identification of the production site.
     All openings to the outside of the packinghouse where the 
fruit is packed must be covered by screening or by some other barrier 
that prevents pests from entering. The packinghouse must have double 
doors at the entrance to the facility and at the interior entrance to 
the area where the fresh cape gooseberry fruit is packed.
     Each consignment of fresh cape gooseberry fruit must be 
accompanied by a phytosanitary certificate issued by the NPPO of 
Ecuador that contains an additional declaration stating that the fruit 
was produced in accordance with 7 CFR 319.56-4.
     To be eligible for importation, the fresh cape gooseberry 
fruit must either be treated or produced and shipped under the systems 
approach.
     Systems approach: Fresh cape gooseberry fruit may be 
imported without treatment if it is subject to a systems approach 
consisting of the following: Low-prevalence production site 
certification, fruit fly trapping, and phytosanitary inspection.
     Treatment: Fresh cape gooseberry fruit that does not meet 
the requirements of the systems approach may be imported into the 
continental United States if the fruit is subject to cold treatment or 
irradiation treatment in accordance with 7 CFR part 305. If the 
irradiation treatment is completed in Ecuador, each consignment of 
fresh cape gooseberry fruit must be accompanied by documentation to 
validate foreign site preclearance inspection of the consignment.
    In addition to these specific measures, fresh cape gooseberry fruit 
from Ecuador will be subject to the general requirements listed in 
Sec.  [thinsp]319.56-3 that are applicable to the importation of all 
fruits and vegetables.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the burden requirements included in this notification 
are covered under the Office of Management and Budget (OMB) control 
number 0579-0049. We estimate these burden activities to be 1,199 
hours, which will be added to 0579-0049 in the next quarterly update.

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 notification, please contact Mr. Joseph 
Moxey, APHIS' Information Collection Coordinator, at (301) 851-2483.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

    Authority: 7 U.S.C. 1633, 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 11th day of September 2019.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2019-20096 Filed 9-18-19; 8:45 am]
BILLING CODE 3410-34-P