[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Rules and Regulations]
[Pages 62465-62468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24490]
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Rules and Regulations
Federal Register
________________________________________________________________________
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
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 215 / Wednesday, November 10, 2021 /
Rules and Regulations
[[Page 62465]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2016-0034]
Notification of Decision To Authorize the Importation of Pummelo
From Thailand Into the Continental United States
AGENCY: Animal and Plant Health Inspection Service, Department of
Agriculture (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 pummelo fruit
from Thailand. 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
pummelo fruit from Thailand.
DATES: The articles covered by this notification may be authorized for
importation after November 10, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Claudia A. Ferguson, M.S., Senior
Regulatory Policy Coordinator, Imports, Regulations, and Manuals,
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) 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 the introduction and dissemination of plant pests.
On March 29, 2018, we published in the Federal Register (83 FR
13433-13436, Docket No. APHIS-2016-0034) a proposal \1\ to amend the
regulations by allowing for the importation of commercially produced
fresh pummelo (Citrus maxima (Berm.) Merr.) fruit from Thailand 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 and enter
APHIS-2016-0034 in the Search field.
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We solicited comments concerning our proposal for 60 days ending
May 29, 2018. We received seven comments by that date. They were from
producers, industry groups, private citizens, and a State department of
agriculture. They are discussed below by topic.
Comments on the Pest Risk Assessment
We prepared a pest risk assessment and a risk management document
(RMD) in connection with our proposal. Based on the findings of the
pest risk assessment, we determined that measures beyond standard port
of entry inspection would be required to mitigate the risks posed by
these pests. These measures are identified in the RMD and were used as
the basis for the requirements included in the proposed rule.
One commenter, from the Florida Department of Agriculture and
Consumer Services, Division of Plant Industry, 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 pummelo fruit from
Thailand, it is outside the scope of the current action.
The same commenter observed that the pest risk assessment as a
whole is based upon the assumption that the required post-harvest
irradiation treatment may occur either in Thailand or upon arrival in
the United States. The commenter went on to point out an inconsistency
in the way in which we assessed the phytosanitary risk associated with
Tephritidae species (Bactrocera correcta Bezzi, Bactrocera cucurbitae
Coquillett, Bactrocera dorsalis Hendel, Bactrocera papayae Drew &
Hancock, Bactrocera tau Walker, and Monacrostichus citricola Bezzi in
the list of actionable pests). The commenter pointed out that the
likelihood of these pests surviving post-harvest processing before
shipment was rated as negligible due to the required irradiation
treatment, but that the likelihood of the pests surviving transport and
storage conditions of the consignment was marked not applicable, which
indicated to the commenter that the risk associated with Tephritidae
species was analyzed using the assumption that the fresh pummelo fruit
would be treated with irradiation in Thailand only and not upon arrival
in the United States after transport. The commenter recommended that
the analysis be updated with any risk associated transit and storage of
those shipments treated upon arrival or that it be altered to specify
that risk was considered based on the presumption of irradiation
treatment in Thailand only.
We agree with the commenter's point and have updated the pest risk
assessment to reflect the risk presented by pests potentially surviving
transport and storage conditions of the consignment in the event that
post-harvest irradiation treatment is not performed in Thailand. This
change may be found on page 23 of the updated pest risk assessment.
Comments on Phytosanitary Issues
We proposed to require that fresh pummelo fruit from Thailand be
subject to a systems approach that includes irradiation treatment,
packinghouse processing requirements, and port of entry inspection. We
also proposed that the fruit be imported only in commercial
consignments and be accompanied by a phytosanitary certificate issued
by the national plant protection organization (NPPO) of Thailand. One
commenter said that these measures are not 100 percent effective in
preventing the entry of
[[Page 62466]]
actionable pests. Another commenter requested that fresh pummelo fruit
from Thailand 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 the listed pests and the
State of Florida's history of damaging incursions by invasive pests
associated with the importation of foreign commodities.
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 pummelo fruit from Thailand. The commenters did not provide any
evidence suggesting that the mitigations are not effective. Therefore,
we are not taking the action requested by the commenters.
The pest risk assessment identified 21 actionable pests that could
be introduced into the United States in consignments of fresh pummelo
fruit from Thailand. We provided a list of those pests in the proposed
rule and its supporting documentation. One commenter said that the
proposed rule did not mention invasive species, focusing only on
actionable pests. The commenter argued that we should provide a full
list of potentially invasive species associated with this action.
Another commenter argued that the pest risk assessment we prepared was
too narrow in scope, and should take into account the potential adverse
effects of actionable pests on all known and potential hosts of those
pests.
The term ``actionable pest'' includes those species known to be
invasive, but also includes a larger group of pests since a species
does not have to be recognized as invasive in order to cause harm.
Actionable pests include quarantine pests, regulated non-quarantine
pests, pests considered for or under official control, and pests that
require evaluation for regulatory action. The wider scope described by
the second commenter was therefore built into the pest risk assessment
and RMD. Actionable pests in this case are those known to be associated
with fresh pummelo fruit and present in Thailand.
Fresh pummelo fruit from Thailand will be required to be treated
with a minimum absorbed irradiation dose of 400 Gy in accordance with
Sec. 305.9 of the phytosanitary treatment regulations in 7 CFR part
305. This is the established generic dose for all insect pests except
pupae and adults of the order Lepidoptera. A commenter cited the
presence of three Lepidopteran pests (Citripestis sagittiferella Moore,
Prays citri Milli[egrave]re, and Prays endocarpa Meyrick) in the list
of actionable pests as an indication that the phytosanitary risk
associated with the importation of fresh pummelo fruit from Thailand is
too high.
The systems approach includes other phytosanitary procedures
designed to provide protection from pests against which irradiation is
not effective. In addition, irradiation in conjunction with other
mitigations against Lepidopteran pests can provide phytosanitary
protection since it is lethal to larvae, tends to prevent normal adult
emergence from the pupal stage, and causes sterility in pupae and
emerged adults.
Two commenters requested assurance that actionable pests will not
be introduced into the United States in connection with the pallets
used in the shipment of fresh pummelo fruit from Thailand or via
transshipment through countries not included in the pest risk
assessment and RMD.
Wood packaging material, including pallets, used for the
importation of commodities is governed by the regulations in 7 CFR
319.40-3(b), which stipulates treatment and marking. For the reasons
explained in the proposed rule, the RMD, and this document, we consider
the required provisions adequate to mitigate the risk associated with
the importation of fresh pummelo fruit from Thailand. The commenters
did not provide any evidence suggesting that the mitigations are
individually or collectively ineffective. Failure to adhere to program
standards, including packaging transshipped fruits, may result in
removal from the export program.
One commenter observed that fresh pummelo fruit imported into
Canada is currently not allowed to enter the United States for
phytosanitary reasons and questioned the wisdom of allowing the fruit
to directly enter the United States.
Each country determines its own importation requirements based on a
number of factors, including factors particular to that country. While
there may be some similarities in each country's phytosanitary
approach, the requirements are not always identical. The requirements
established by this document are country- and commodity-specific for
the importation of fresh pummelo fruit from Thailand into the
continental United States.
Comments on Trade and Economic Factors
One commenter expressed concern that recent APHIS trade and policy
efforts have tended to favor facilitating import access to the U.S.
market.
APHIS' phytosanitary evaluation process only begins once a
country's NPPO has submitted a formal request for market access for a
particular commodity. APHIS does not solicit such requests, nor do we
control which countries submit requests. APHIS' primary responsibility
with regard to international import trade is to identify and manage the
phytosanitary risks associated with importing commodities. When we
determine that the risk associated with the importation of a commodity
can be successfully mitigated, as is the case regarding the importation
of fresh pummelo fruit from Thailand, it is our responsibility under
the trade agreements to which we are a signatory, such as the World
Trade Organization's Agreement on Sanitary and Phytosanitary Measures
(SPS Agreement), to provide for the importation of that commodity.
Another commenter said that allowing for the importation of fresh
pummelo fruit from Thailand may not produce a positive effect on the
U.S. economy or domestic producers. Two commenters stated that there is
a sufficient domestically produced supply of fresh pummelo fruit to
meet current market demand and hypothesized that the lower cost of
imported fresh pummelo fruit would serve to harm domestic producers.
APHIS' statutory authority allows us to prohibit the importation of
a fruit or vegetable into the United States only if we determine that
the prohibition is necessary in order to prevent the introduction or
dissemination of a plant pest or noxious weed within the United States.
As a signatory to the SPS Agreement, the United States has agreed to
base its decisionmaking process on evaluation and mitigation of
phytosanitary risk and not on the economic and trade factors referenced
by the commenter. As we discuss later in this document, however,
available data does not suggest that fresh pummelo fruit from Thailand
will be imported at a lower cost than domestic production.
Two commenters objected to our requirement that the fresh pummelo
fruit originate from commercial farms and stated that such a
requirement would effectively exclude the majority of farmers in
Thailand while encouraging the development of large scale, monoculture
farms. One of the commenters cited a USDA requirement of $350,000 net
income as the minimum amount needed for classification as a commercial
farm.
We proposed to allow only commercial consignments of fresh pummelo
fruit from Thailand to be
[[Page 62467]]
accepted for importation into the continental United States. Commercial
consignments, as defined in Sec. 319.56-2, are consignments that an
inspector identifies as having been imported for sale and distribution.
Such identification is based on a variety of indicators, including, but
not limited to: Quantity of produce, type of packing, identification of
grower or packinghouse on the packaging, and documents consigning the
fruits or vegetables to a wholesaler or retailer. The size of the farm
\2\ of origin is not a factor in determining whether or not a given
consignment is commercial.
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\2\ The $350,000 figure is a standard used by USDA's Economic
Research Service in the course of their own research as the dividing
line between small and midsize domestic farms. APHIS does not use
this measure; we instead rely on Small Business Association
standards to identify small entities potentially affected by our
rules.
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One commenter stated that Federal and State resources intended to
protect domestic agriculture production have not kept pace with the
growing volume of fruit and vegetable imports, placing strain on the
system.
APHIS has reviewed its resources and consulted with U.S. Customs
and Border Protection and believes there is adequate coverage across
the United States to ensure compliance with APHIS regulations,
including the importation of pummelo from Thailand, as established by
this action. The commenter did not provide any evidence of shortfalls
in State resources that would prevent APHIS from carrying out the
provisions of this action.
A commenter said that the economic analysis that accompanied the
proposed rule did not reflect the potential financial impacts of
pummelo producers in Florida. The commenter said that allowing for the
importation of fresh pummelo fruit from Thailand at the same time of
year that domestic fruit comes to market would result in negative
economic impacts for Florida growers.
The commenter cited the importation of fresh pummelo fruit from
Southeast Asia into Canada as an example of what may happen to the U.S.
fresh pummelo market, stating that imported fruit in Canada has been
marketed at a price far lower than U.S. domestic growers can achieve.
The commenter predicted that the price of fresh pummelo fruit in the
Canadian market is an indicator of future U.S. prices for imported
pummelos and consequently greatly harm domestic growers.
While our trade decisions are made based on science rather than
economic factors, we note that we stated in the economic analysis that
accompanied the proposed rule that information on pummelo production in
Arizona, Florida, and Texas was not available. In addition, U.S. import
and export data specific to pummelo are also not available because
pummelo is grouped with grapefruit in Department of Commerce trade
statistics (Harmonized Tariff Schedule 080540). As always, APHIS
welcomes informed comment on the size and scope of any industry for
which we do not have data.
In response to the commenter's concerns, we examined the market for
fresh pummelo fruit in Canada and determined that Canada imported an
average of 36,379 metric tons per year during the period 2017 through
2020. Of this, 44 percent originated in the United States, and 0.003
percent (or 124 metric tons) originated from Thailand. During that
period, the average price Canadian importers paid overall for fresh
pummelo fruit was $990 per metric ton, the average price Canadian
importers paid for fresh pummelo fruit from the United States was $989
per metric ton, and the average price Canadian importers paid for fresh
pummelo fruit from Thailand was $2,030 per metric ton. Based on this
data, we do not agree with the commenter's claim that U.S. pummelo
fruit is at a competitive price disadvantage in the Canadian market in
relation to imported fresh pummelo fruit from Thailand. Our available
Canadian data suggests Thailand's share of the domestic pummelo market
within the United States will be minimal, compared to domestic
production, and Thailand will not be able to market the fruit at a
price point below that of domestic producers.
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. 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 (FAVIR) database. With those changes to the
regulations, we cannot issue the final regulations as contemplated in
our March 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\ 83 FR 46627 (September 14, 2018). To view the final rule, go
to https://www.regulations.gov and enter APHIS-2010-0082 in the
Search field.
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Therefore, in accordance with the regulations in Sec. 319.56-
4(c)(3)(iii), we are announcing our decision to authorize the
importation into the continental United States of fresh pummelo fruit
from Thailand subject to the following phytosanitary measures, which
will be listed in FAVIR, available at https://epermits.aphis.usda.gov/manual:
The fresh pummelo fruit must be shipped in commercial
consignments only.
The fresh pummelo fruit must be treated with irradiation
in accordance with 7 CFR part 305.
Prior to packing, the fresh pummelo fruit must be washed,
brushed, disinfested, submerged in surfactant, treated for Xanthomonas
citri Gabriel et al. with an APHIS-approved surface disinfectant, and
treated for Phyllosticta citriasiana and Phyllosticta citricarpa with
an APHIS-approved fungicide.
Each shipment of fresh pummelo fruit must be accompanied
by a phytosanitary certificate issued by the NPPO of Thailand. If the
fresh pummelo fruit was irradiated in Thailand, each consignment of
fruit must be inspected jointly in Thailand by APHIS and the NPPO of
Thailand, and the phytosanitary certificate must contain an additional
declaration attesting to irradiation of the fresh pummelo fruit in
accordance with 7 CFR part 305. If the fresh pummelo fruit will be
irradiated upon arrival into the continental United States, joint
inspection in Thailand and an additional declaration on the
phytosanitary certificate are not required.
Consignments of fresh pummelo fruit from Thailand are
subject to inspection at ports of entry in the continental United
States.
In addition to these specific measures, fresh pummelo fruit from
Thailand will be subject to the general requirements listed in Sec.
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 and recordkeeping requirements associated
with this action are covered under the Office of Management and Budget
control number 0579-0049, which is updated every 3 years during the
required renewal period. We estimate the total annual burden to be 24
hours.
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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 action, please contact Mr. Joseph Moxey,
APHIS' Paperwork Reduction Act Specialist, 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 4th day of November 2021.
Mark Davidson,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2021-24490 Filed 11-9-21; 8:45 am]
BILLING CODE 3410-34-P