[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Rules and Regulations]
[Pages 76133-76140]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24423]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 02-049-2]


Importation of Fragrant Pears From China

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 fragrant pears from China under certain conditions. 
As a condition of entry, fragrant pears from China must be grown in the 
Korla region of Xinjiang Province in a production site that is 
registered with the national plant protection organization of China. 
The fragrant pears will be subject to inspection. In addition, the 
pears must be packed in cartons that are labeled in accordance with the 
regulations, shipped in insect-proof containers, and safeguarded from 
pest infestation during transport to the United States. This action 
will allow fragrant pears to be imported from China while continuing to 
provide protection against the introduction of plant pests into the 
United States.

DATES: Effective Date: January 23, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Alex Belano, Import Specialist, 
Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road 
Unit 140, Riverdale, MD 20737-1231; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in 7 CFR 319.56 through 319.56-8 (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 regulations have not previously included provisions authorizing 
the importation of fragrant pears from China. However, the national 
plant protection organization of China requested that the Animal and 
Plant Health Inspection Service (APHIS) amend the regulations to allow 
fragrant pears from the Korla region of Xinjiang Province in China to 
be imported into the United States.
    Under section 412(a) of the Plant Protection Act, the Secretary of 
Agriculture may prohibit or restrict the importation and entry of any 
plant product if the Secretary determines that the prohibition or 
restriction is necessary to prevent the introduction into the United 
States or the dissemination within the United States of a plant pest or 
noxious weed. The Secretary has determined that it is not necessary to 
prohibit the importation of fragrant pears from the Korla region of 
Xinjiang Province in China in order to prevent the introduction into 
the United States or the dissemination within the United States of a 
plant pest or noxious weed.\1\
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    \1\ This determination is based on the finding that the 
application of the remedial measures contained in this rule will 
provide the protection necessary to prevent the introduction and 
dissemination of plant pests into the United States. The factors 
considered in arriving at this determination include the conclusions 
of a pest risk assessment, program analysis, and site visits.
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    Accordingly, on May 23, 2003, we published in the Federal Register 
(68 FR 28161-28166, Docket No. 02-049-1) a proposal to amend the fruits 
and vegetables regulations to allow the importation of fragrant pears 
from China under certain conditions. Among other things, we proposed 
that the fragrant pears be packed in insect-proof containers that are 
labeled in accordance with Sec.  319.56-2(g). However, upon further 
consideration, we are amending the packing and shipping requirements in 
this final rule to make clear that the fragrant pears must be packed in 
cartons that are labeled in accordance with Sec.  319.56-2(g), shipped 
in insect-proof containers, and safeguarded during transport to the 
United States in a manner that will prevent pest infestation. These 
changes will clarify the packing and shipping requirements and be more 
consistent with current packing and shipping practices for pears.
    We solicited comments concerning our proposal for 60 days ending on 
July 22, 2003. We received seven comments by that date. They were from 
private citizens, a professional organization, and representatives of 
State and foreign governments. The comments are discussed by subject 
below.

General

    One commenter requested that we provide the scientific name for 
fragrant pear. In the January 1997 pest risk assessment, we indicated 
that the scientific name for fragrant pear from China was Pyrus 
ussuriensis Maxim. However, in 2005, the national plant protection 
organization of China informed APHIS that the scientific name for 
fragrant pear is Pyrus sp. nr. communis. Accordingly, we will use Pyrus 
sp. nr. communis, rather than Pyrus ussuriensis Maxim, as the 
scientific name for fragrant pear.
    Another commenter requested that APHIS identify the specific 
government organization that serves as the ``national plant protection 
organization for China.'' Currently, the national plant protection 
organization for China is known as the Administration for Quality 
Supervision, Inspection and Quarantine (AQSIQ). We used the generic 
term ``national plant protection organization of China'' in the 
proposed rule and continue to do so in this final rule because the name 
of the national plant protection organization of China has changed 
several times in recent years. Our use of this more generic term is 
consistent with international standards.
    One commenter recommended that APHIS fully disclose all information 
collected and used in generating the proposed rule. This commenter also 
recommended that APHIS delay action on the proposed rule until it has 
developed and circulated for peer review the following documents: A 
detailed plan documenting the incidence of specific quarantine pests in 
the Korla region, survey information for those pests for which free 
area status is proposed, in-orchard monitoring plans for those pests 
known to occur in the region, and greater detail of the post-harvest 
inspection protocols which will be implemented.
    We do not believe it is necessary to delay action on the proposed 
rule pending development and peer review of the documents listed by the 
commenter. The Secretary has determined that it is not necessary to 
prohibit the importation from the Korla region of Xinjiang Province in 
China in order to prevent the introduction into the United States or 
the dissemination

[[Page 76134]]

within the United States of a plant pest or noxious weed. This 
determination is based on the finding that the remedial measures 
contained in this final rule will provide the protection necessary to 
prevent the introduction and dissemination of plant pests into the 
United States. In making this determination, the Secretary considered 
the conclusions of a pest risk assessment, program analysis, survey 
information, and site visits. Our analysis is documented in a September 
2005 information memorandum, which is available on the Internet at 
http://www.regulations.gov.\2\ This memorandum updates a June 2003 
information memorandum on the same subject. We do not believe that 
additional documents need to be developed and circulated for peer 
review.
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    \2\ This final rule and the September 2005 information 
memorandum are available on the Regulations.gov Web site. Go to 
http://www.regulations.gov, click on the ``Advanced Search'' tab and 
select ``Docket Search.'' In the Docket ID field, enter APHIS-2005-
0108 then click on ``Submit.'' The final rule and information 
memorandum will appear in the resulting list of documents. The 
information memorandum may also be obtained from the person listed 
under FOR FURTHER INFORMATION CONTACT.
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    With respect to the disclosure of all information collected and 
used in generating the proposed rule, we note that the proposed rule 
stated that the pest risk assessment and supporting documents could be 
obtained from the person listed under FOR FURTHER INFORMATION CONTACT, 
and we provided several individuals with the information they 
requested. The information and data provided by China are summarized in 
the September 2005 information memorandum and the documents on which 
the information memorandum is based are on file with APHIS. Due to the 
large volume of material provided by China, we would ask that persons 
wishing to view those documents make arrangements with the person 
listed under FOR FURTHER INFORMATION CONTACT for viewing the file or 
obtaining copies of specific documents.
    One commenter indicated that fragrant pears should not be imported 
from China because the risk of fruit flies is too great, especially 
since ``APHIS is already not doing its job with imports.''
    We do not agree that the risk of fruit flies is too great to allow 
the importation of fragrant pears from China. As documented in the 
September 2005 information memorandum, the Korla region of Xinjiang 
Province has been determined to be free of fruit flies. China conducted 
trapping for fruit flies for 3 years in the Korla region with negative 
results. Furthermore, in the unlikely event a fruit fly is introduced 
into the region, climatic conditions and production practices there 
would significantly reduce the likelihood of establishment. The 
commenter provided no scientific documentation to support his 
suggestion that we continue to prohibit the importation of fragrant 
pears from the Korla region of Xinjiang Province in China.
    Another commenter stated that ``as a matter of equity, USDA should 
continue to postpone the implementation of this proposed rule until 
such time as the Chinese Government allows U.S. pear growers access to 
its market for U.S. pears since we believe that we have provided ample 
scientific justification for such access.''
    Other countries make decisions as to whether to allow the 
importation of U.S. products only when formally requested. APHIS has 
already formally requested that China allow the importation of U.S. 
pears, and we are working with the U.S. pear industry to address 
concerns raised by the national plant protection organization of China. 
Moreover, under the Plant Protection Act, our decisionmaking related to 
allowing or denying the importation of commodities must be based on 
phytosanitary considerations rather than the goal of reciprocal market 
access.

Pest Risk Assessment

    Several commenters stated that APHIS' pest risk assessment did not 
consider all pests of quarantine concern. One commenter noted that the 
pest risk assessment did not include the following pests: Carposina 
sasakii Matsimura, Coleophora hemerobiella Scopoli, Leucoptera 
malifoliella (Costa), Synanthedon hector (Butler), and Cydia inopinata 
Heinrich. Another commenter identified 29 insect species of quarantine 
concern that were not identified in APHIS' pest risk assessment. 
However, the commenter noted that some of these pests may be synonymous 
with APHIS-listed species. This commenter also noted that a January 
2003 proposed import risk assessment for Shandong pears published by 
the Australian Government identified a number of species that are not 
addressed by APHIS' pest risk assessment.
    We have reviewed the scientific literature for each pest identified 
by the commenters. For various reasons (e.g., post-harvest handling 
practices, the pest does not attach to fruit, the pest is a surface 
pest and easily detected), we believe that none of these pests will 
follow the pathway into the United States. Carposina sasakii and Cydia 
inopinata (syn. Grapholita inopinata) are absent from the fragrant pear 
production areas and the province of Xinjiang as a whole. Leucoptera 
malifoliella has been found not likely to follow the pathway. 
Coleophora hemerobiella may follow the pathway as hitchhikers but, 
since they are external, can be easily detected during inspection. 
Synanthedon hector does occur in China but does not attack pears since 
it is a pest of apples.
    One commenter stated that one of the mites of concern, Tetranychus 
viennensis, occurs in Heshuo in Xinjiang Province. This commenter also 
stated that Canada has intercepted mites on fragrant pear shipments 
from China.
    The Hawthorn spider mite, Tetranychus viennensis, was found in 
Heshuo Farm in Xinjiang Province in 1996. Heshuo Farm is located 
approximately 50 miles from the production sites in the Korla region 
and is difficult to reach due to poor road conditions. There is no 
commercial production of pears or apples in Heshuo, and there is very 
little commercial activity between Heshuo and Korla. To date, the 
Hawthorn spider mite has not been found in the Korla region. According 
to the September 2005 information memorandum, this mite was not found 
in the Korla region during general surveys in the 1970s, 1980s, and 
1990s or during several intensive surveys for mites in 1996-1997. 
Moreover, based on information provided by Canada, the Hawthorn spider 
mite has been intercepted on Ya pear shipments from China, not fragrant 
pears. Ya pears are grown in the Hebei Province of China, which is 
separated from the Korla region by the Gobi Desert.
    One commenter stated the proposed rule is overly strict and not 
scientifically justified. This commenter went on to note that the 
listed pests include non-quarantine saprophytes (organisms that obtain 
food from dead organic matter). The commenter suggested that APHIS 
delete these saprophytes from the quarantine pest table or determine 
which species will be recognized as quarantine pests.
    We disagree with the commenter's claim that the proposed rule is 
overly strict and not scientifically justified. The provisions in the 
proposed rule and in this final rule are based on the conclusions of a 
pest risk assessment, program analysis, survey information, and site 
visits, and will provide the protection necessary to prevent the 
introduction and dissemination of plant pests into the United States. 
The commenter did not provide the names of those saprophytes he 
considered to be non-quarantine pests, and we continue

[[Page 76135]]

to believe that the saprophytes listed in the pest risk assessment are 
properly characterized as quarantine pests.
    One commenter requested that APHIS provide scientific documentation 
showing that Hoplocampa pyricola is not an internal feeder. This 
commenter also asked if the Hawthorn spider mite lays eggs in calices 
of fruit like the Tetranychus urticae.
    Although little is known about the biology of the sawfly, 
Hoplocampa pyricola, the available scientific information indicates 
that sawfly eggs are deposited in the ovary of the flower. The larvae 
then feed on the ovary and the fruit. Once the larvae reach maturity, 
the infested fruit prematurely drops from the tree and the larvae enter 
the soil to pupate. Given the external damage and premature dropping of 
the fruit, we believe that inspections in China and the United States 
will mitigate the risk of this pest.
    The Hawthorn spider mite primarily feeds on the underside of a 
leaf, preferably the underside of a cherry leaf. Female mites 
overwinter in the cracks and under the bark of stems and branches. When 
mite populations are high, the female mite may overwinter in the calyx 
crevices or in the depression on the stem-end of mature fruit, like the 
Tetranychus urticae.
    Several commenters asked why APHIS had denied so many permits for 
pears from China in the past. These commenters wondered how these 
permit requests differed from the current request that APHIS allow 
fragrant pears from the Korla region of Xinjiang Province in China to 
be imported into the United States.
    As previously discussed, 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. Prior to this final rule, the regulations did 
not authorize the importation of fragrant pears from China. Each year 
APHIS receives many requests for permits to import fruits and 
vegetables into the United States. Some of these requests are for 
nonadmissible items. Prior to 1995, when the importation of Ya pears 
from Hebei and Shandong Provinces was authorized, we had only allowed 
the importation of sand pears from China. Therefore, all requests for 
permits to export pears, other than sand pears, into the United States 
from China were denied prior to 1995, and since 1995, permits have been 
issued only for sand pears and Ya pears from China. This final rule 
amends the regulations to allow the importation of fragrant pears from 
China under certain conditions, thus making the issuance of permits for 
fragrant pears possible.
    Another commenter noted that the pest risk assessment states that 
there were no pest interceptions on pear imports from China between 
1985 and 1995. To better evaluate this statement, the commenter 
requested that APHIS provide the total number of shipments imported 
into the United States during that time and the number of shipments 
that were sampled. The commenter also asked for the sample rate used by 
APHIS on other imported pear species from China.
    The inspectors routinely sample 2 percent of fruit presented for 
inspection. There were 10 shipments of sand pears from China in 1994 
and 15 shipments of sand pears in 1995, all of which were inspected. 
Our records show there were no interceptions of quarantine significance 
from commercial shipments or passenger baggage from 1984 through 1995.
    One commenter noted that the pest risk assessment indicates that 
sweep nets and blacklight traps were used to survey for mites in the 
area. The commenter indicated that these are inappropriate survey tools 
to detect mites and expressed concern that inspection upon entry may 
not provide sufficient protection from the introduction of Hawthorn 
spider mite into the United States and more stringent measures may be 
needed.
    Sweep nets and blacklight traps were reported as having been used 
by general survey teams working in the region between 1971 and 1975; 
those teams were engaged in surveys for a variety of pests, i.e., not 
just for mites. Subsequent intensive surveys for mites were conducted 
after Chinese officials provided advanced identification training to 
their extension agents in the Korla region. None of the species of 
mites collected are considered to be of quarantine significance by the 
United States.
    As previously discussed, the Hawthorn spider mite has been found in 
Heshuo in Xinjiang Province, but not in the Korla region. According to 
the September 2005 information memorandum, the Hawthorn spider mite was 
not found in the Korla region during general surveys in the 1970s, 
1980s, and 1990s. Moreover, the Hawthorne spider mite was not 
identified during several intensive surveys for mites in 1996-1997. 
Indeed, no mites of quarantine significance were identified during 
these intensive surveys. We believe that current production practices 
in China and the mitigation measures in this final rule will provide 
the protection necessary to prevent the introduction and dissemination 
of the Hawthorn spider mite into the United States. Therefore, we are 
making no changes based on this comment.

Registration

    Several commenters noted there is very little information about 
what it takes for a site to become registered (e.g., grower practices 
or surveys of pest populations). These commenters indicated there is 
insufficient information about the registration process to evaluate the 
effectiveness of that proposed requirement and whether the national 
plant protection organization of China has the authority and resources 
to maintain and evaluate such registrations.
    The proposed rule and this final rule do not provide specific 
information about how a site becomes registered by the national plant 
protection organization of China because the national plant protection 
organization of China determines the requirements for registration, not 
APHIS. In general, a production site seeking to register would be 
subject to control practices and pest surveys mandated by the local and 
national plant protection organizations of China. This registration 
system is already being used by China to export fragrant pears to 
Canada and other countries. We are confident that the registration 
system, in addition to the other mitigation measures set forth in this 
rule, will be sufficient to protect against the introduction of plant 
pests into the United States. Accordingly, we are making no changes 
based on these comments.
    One commenter requested proof that the growing area is free of 
fruit flies. As previously discussed, all available data indicates that 
the Korla region of Xinjiang Province is free of fruit flies. The 
Chinese Government conducted trapping for Bactrocera dorsalis for 3 
years in the Korla region with negative results. Furthermore, our 
trading partners have not reported any interceptions of fruit fly 
larvae in fragrant pears from Xinjiang Province. In the unlikely event 
a fruit fly is introduced into the region, climatic conditions and 
production practices there would significantly reduce the likelihood of 
establishment.
    Another commenter asked if the Korla region is currently free of 
the pests identified in the proposed rule and pest risk assessment. If 
so, the commenter requested that the supporting data be made available 
for review by independent experts.

[[Page 76136]]

    As noted in our response to a comment earlier in this document, the 
proposed rule announced the availability of the pest risk assessment 
and supporting documents, and the information and data provided by 
China are summarized in the September 2005 information memorandum. The 
September 2005 information memorandum identifies 17 pests of concern; 
of these, 1 pest (Tetranychus kanzawai Kishida) is not considered a 
quarantine pest, 1 pest (pear rusty skin viroid, also known as apple 
scar skin viroid) is not expected to follow the pathway, and there is 
no evidence of the remaining 15 quarantine pests in Korla. We believe 
that the information memorandum fully identifies, summarizes, and 
analyzes the available scientific data, but, as stated previously, 
persons wishing to review the large volume of material provided by 
China may do so by making arrangements with the person listed under FOR 
FURTHER INFORMATION CONTACT.

Trapping and Monitoring

    One commenter requested information about the sampling protocols 
used to detect pests. As discussed in the proposed rule, fragrant pears 
would be subject to both pre-harvest and post-harvest inspections by 
the national plant protection organization of China or officials 
authorized by the national plant protection organization of China. The 
national plant protection organization of China would establish the 
sampling protocols used to detect pests. However, the national plant 
protection organization of China would have to provide APHIS with 
information on pest detections and pest detection practices, and APHIS 
would have to approve the pest detection practices.
    One commenter stated that the proposed rule did not mention any 
interceptions of quarantine diseases on Ya pears in 2001 and 2002, nor 
did it discuss interceptions of quarantine pests by Canada on both Ya 
and fragrant pears. The commenter recommended that APHIS conduct and 
publish a survey of other Chinese pome fruit importing countries to 
determine their experience with pest interception on Chinese pears and 
apples.
    As part of APHIS' pest risk analysis, we reviewed information about 
interceptions of quarantine pests and diseases on all species of pears. 
Information obtained from Canada indicates that two pests of quarantine 
concern to APHIS were intercepted on pears from China during the 2002-
2003 season--the Aphanostigma sp. poss. jackusiensis (phylloxeran) and 
the Hawthorn spider mite. The phylloxeran was intercepted on both Ya 
pears and fragrant pears from China while the Hawthorn spider mite was 
intercepted only on Ya pears. Nevertheless, we believe that the origin 
requirements and remedial measures contained in this final rule will 
provide the protection necessary to prevent the introduction and 
dissemination of these pests into the United States. Phylloxeran causes 
damage on the surface of the fruit that is easily detected by 
inspection and, as previously discussed, the Hawthorn spider mite does 
not occur in the Korla region and it is unlikely to become established 
in that region due to climatic conditions and production practices. In 
response to the Canadian interceptions of phylloxeran on fragrant 
pears, we have added that pest to the list in Sec.  319.56-
2nn(a)(4)(ii) of pests that, if detected, could lead to APHIS' 
rejection of the lot or consignment and a prohibition on the 
importation into the United States of fragrant pears from the 
production site for the season.
    In December 2003, after the close of the comment period for the 
proposed rule, APHIS suspended imports of Ya pears from China due to 
detections of Chocolate spot (Alternaria yaliinficiens). In March 2005, 
APHIS negotiated revisions to the Ya pear work plan with China, 
strengthening the mitigation measures applied to prevent further 
introductions of quarantine significant Alternaria spp. in Ya pears. 
Upon signing the new agreement, the Ya pear market was reopened. We 
note that this final rule requires that if any listed quarantine pest, 
including Alternaria spp., is found during the pre-harvest inspection 
or at any other time, the national plant protection organization of 
China must notify APHIS immediately. APHIS may then reject the lot or 
consignment and prohibit the importation into the United States of 
fragrant pears from the production site for the season, and imports may 
not resume until an investigation is conducted and APHIS and the 
national plant protection organization of China agree that appropriate 
remedial action has been taken.
    One commenter asked what would happen if different pests were found 
in different sites, and if that would be regarded in the same manner as 
if a single type of pest was found at more than one production site. 
Another commenter recommended that APHIS prohibit the importation of 
fragrant pears into the United States if any pests or more than one 
species of different pests are detected in more than one registered 
production site.
    APHIS' response to a pest detection would depend upon the pest. 
Upon detection of Oriental fruit fly (Bactrocera dorsalis) during the 
pre-harvest inspection or at any other time, APHIS could prohibit the 
importation into the United States of fragrant pears from China until 
an investigation is conducted and APHIS and the national plant 
protection organization of China agree that appropriate remedial action 
has been taken. In addition, APHIS could prohibit the importation into 
the United States of fragrant pears from a production site for the 
season if any of the following pests are detected on that production 
site during the pre-harvest inspection or at any other time: Peach 
fruit borer (Carposina sasaki), yellow peach moth (Conogethes 
punctiferalis), apple fruit moth (Cydia inopinata), Hawthorn spider 
mite (Tetranychus viennensis), red plum maggot (Cydia funebrana), brown 
rot (Monilinia fructigena), Asian pear scab (Venturia nashicola), pear 
trellis rust (Gymnosporangium fuscum), Asian pear black spot 
(Alternaria spp.), and phylloxeran (Aphanostigma sp. poss. 
jackusiensis). Thus, if peach fruit borer is detected in one production 
site and yellow peach moth is detected in another, APHIS could prohibit 
the importation into the United States of fragrant pears from each 
production site for the season. However, if any of the pests listed 
above is detected in more than one registered production site, APHIS 
could prohibit the importation into the United States of fragrant pears 
from China until an investigation is conducted and APHIS and the 
national plant protection organization of China agree that appropriate 
remedial action has been taken.
    One commenter indicated that it would be difficult to make sure 
that fragrant pears absolutely do not carry Asian pear black spot or 
Hawthorn spider mite. Thus, the commenter stated, it would be better if 
APHIS prohibited the importation of fragrant pears from the production 
sites where those pests are detected, instead of prohibiting the 
importation of all fragrant pears from China.
    We do not agree that it would be too difficult to ensure that 
fragrant pears do not carry Asian pear black spot or Hawthorn spider 
mite. We believe that the mitigation measures in this rule will provide 
the protection necessary to prevent the introduction into and 
dissemination within the United States of plant pests. However, if 
Asian pear black spot or Hawthorn spider mite is detected on a 
production site during the pre-harvest inspection or at any other time, 
APHIS could prohibit the

[[Page 76137]]

importation into the United States of fragrant pears from that 
production site for the season. Moreover, if Asian pear black spot or 
Hawthorn spider mite is detected in more than one registered production 
site during the pre-harvest inspection or at any other time, APHIS 
could prohibit the importation into the United States of fragrant pears 
from China until an investigation is conducted and APHIS and the 
national plant protection organization of China agree that appropriate 
remedial action has been taken. We are making no changes based on this 
comment.
    One commenter noted that pest-specific remedial measures are not 
described in the proposed rule. The commenter contacted several experts 
in temperate orchard pest management to review the risk assessment and 
the proposed remedial measures. These experts indicated that they 
needed more information about the proposed remedial measures to 
determine if these measures would be adequate.
    In the proposed rule, we proposed to allow the importation of 
fragrant pears from China under certain conditions. Specifically, we 
proposed to require that the fragrant pears be grown in the Korla 
region of Xinjiang Province in a production site that is registered 
with the national plant protection organization of China and that these 
production sites be free of certain pests. Furthermore, we provided 
that detection of certain pests could result in a prohibition on the 
importation into the United States of fragrant pears from a particular 
production site for the season or from all of the production sites in 
the Korla region of Xinjiang Province until an investigation is 
conducted and APHIS and the national plant protection organization of 
China agree that appropriate remedial action has been taken. 
Accordingly, the burden is on the national plant protection 
organization of China to provide remedial measures that are appropriate 
for the pest and agreeable to APHIS.

Safeguarding Pears From Pest Infestation

    One commenter stated that the labeling and transport of fragrant 
pears must preclude the pears from being commingled with fruit from 
non-approved areas of China. Several commenters requested clarification 
about how the fragrant pears would be isolated from other fruits (e.g., 
would the pears need to be stacked on different pallets or different 
stacks on a pallet, in different cold rooms, or stored in facilities 
separated by distance or physical barrier?).
    We agree that the labeling and transport of fragrant pears must 
preclude the commingling of fruit from non-approved areas of China. In 
the proposed rule, we proposed to require that the fragrant pears be 
safeguarded at the cold storage facility while awaiting export. 
Specifically, we proposed that the fragrant pears be isolated from 
fruit from unregistered production sites. To allow for greater 
flexibility in meeting this requirement, we did not specify the manner 
in which the fragrant pears are to be isolated. The fragrant pears 
could be isolated from fruit from unregistered production sites by 
stacking them on different pallets at the cold storage facility, by 
holding the pears and other fruits in separate rooms, or by holding the 
pears and other fruits in separate cold storage facilities. Any of 
these options would satisfy the requirement to isolate pears held in a 
cold storage facility from fruit from unregistered production sites.

Economic Analysis

    One commenter stated that the cost/benefit assessment in the 
proposed rule may not be accurate because it is based on Ya pear 
imports, and fragrant pears are a different species with different 
sensory characteristics. The commenter also pointed out that an 
assessment of the short-term impacts is not appropriate for long-lived 
perennial crops such as pears.
    The analysis in the proposed rule recognized that Ya pears and 
fragrant pears are different species with different sensory 
characteristics. Because fragrant pears have not been imported into the 
United States from China, the analysis used Ya pear data to estimate 
the potential economic effects of importing fragrant pears from China. 
In order to estimate the economic effects of importing fragrant pears, 
the analysis assumed that demand for Ya pears and fragrant pears will 
be similar, but it is not necessary to assume that the physical 
characteristics are the same.
    Short-term and long-term impacts depend on consumer acceptance of, 
and demand for, fragrant pears, not on the length of the production 
cycle or the expected life of the tree. The short-run analysis is based 
on data from a similar good, Ya pears. There are no comparable data 
available for a long-run analysis. Accordingly, the analysis in the 
proposed rule focused on the short term impacts of importing fragrant 
pears from China into the United States.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The 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.
    We are amending the fruits and vegetables regulations to allow the 
importation of fragrant pears from China under certain conditions. This 
action will allow fragrant pears to be imported from China while 
continuing to provide protection against the introduction of plant 
pests into the United States.
    The following economic analysis examines whether this rule might 
have a significant economic impact on a substantial number of small 
entities, as required by the Regulatory Flexibility Act. There are 
three reasons why we believe this will not be the case. First, the risk 
of quarantine pests being introduced into the United States via this 
pathway is extremely low. Second, fragrant pears are not produced in 
the United States and fragrant pear import levels are expected to be 
low relative to domestic pear availability. In addition, our analysis 
suggests that fragrant pears from China will not be a close substitute 
for domestically produced pears; therefore, profit losses, if any, for 
domestic pear producers are expected to be extremely low, at least over 
the next several years. Third, allowing the importation of a pear 
variety that is not produced domestically will lead to gains for small 
importers and pear consumers in the United States.

Pear Production and Pest Risks

    Fragrant pears are grown in an area surrounding Korla, a city in 
Xinjiang Province, which makes up the northwest corner of China, and 
are not grown anywhere else in the world. The production area, which is 
west of the Gobi Desert and just north of the Taklamakan Desert, 
experiences extremely hot summers, cold winters, and very little 
rainfall, and is geographically, as well as culturally, isolated. In 
addition, while agricultural commodities are exported from the region, 
there is little if any incoming trade. As a result, the potential for 
pests of quarantine significance being introduced into the area is 
extremely low. Furthermore, in the unlikely event a pest was introduced 
into the region, climatic conditions and production practices there 
would significantly reduce the likelihood of establishment.
    Approximately 15,000 hectares are devoted to fragrant pear 
production in Xinjiang Province, yielding roughly

[[Page 76138]]

90,718 metric tons per year, of which 10 percent is exported. We expect 
that exports to the United States would come mainly from the farm units 
known as Regiments 28, 29, 30, 33, and Shayi Dong Farms, although 
additional quantities could come from Regiments 31 and 32. The land 
belongs to the government, and the proper maintenance of every orchard 
is under the direct supervision of China's national plant protection 
organization, AQSIQ, which stations one supervisor to each regiment in 
the export area. The AQSIQ supervisor is in contact with the growers on 
a weekly basis and directs the work of several survey teams.\3\ The 
survey teams are in the orchards every day and are responsible for 
maintaining traps, extension work, fruit cutting and inspection, 
checking to see that orchards are maintained properly, participating in 
annual pest surveys, and checking on other crops. If it is determined 
that an orchard is not being managed properly, AQSIQ assigns it to 
another grower.
---------------------------------------------------------------------------

    \3\ There are approximately 5,166 hectares of agricultural 
production, 3,000 growers, and 66 survey teams in Regiments 28, 29, 
30, 33, and Shayi Dong Farms, for an average 1.72 hectares per 
grower and 79 hectares per survey team. Most of Regiment 30, 
however, is devoted to wheat and rice production. Each fragrant pear 
grower manages about 1 hectare.
---------------------------------------------------------------------------

Benefits and Costs

    Because pest risks associated with this pathway are extremely low, 
we expect regulatory costs associated with quarantine pest 
introductions to be negligible. In addition, because fragrant pears are 
not produced in the United States and because quantities designated for 
export are expected to be low, at least during the next several years, 
we do not expect fragrant pears to compete with domestically produced 
pears over the short run. However, imports of fragrant pears from China 
may increase over time, as has been the case for U.S. Ya pear imports 
and Canadian Ya and fragrant pear imports from China (table 1).

           Table 1.--Ya Pears From China and Domestically Produced Fresh Pears, Quantities, and Prices
----------------------------------------------------------------------------------------------------------------
                                                                     Domestic
                                   U.S. Ya pear                     production       Domestic      Chinese pear
              Year                  imports \1\    Import prices    fresh pears   prices \2\  ($/   exports to
                                    (1,000 kg)      \1\  ($/kg)     \2\  (1,000         kg)         Canada \3\
                                                                        kg)                         (1,000 kg)
----------------------------------------------------------------------------------------------------------------
1996............................              NA              NA         416,897           $0.62             321
1997............................              NA              NA         519,191            0.41             182
1998............................             329           $1.48         466,107            0.44             909
1999............................           2,058            1.26         486,410            0.43           1,899
2000............................           5,264            0.73         496,348            0.36           4,663
2001............................           6,654            0.54         494,588            0.43           6,548
2002............................           5,788            0.57         475,769            0.40          10,933
2003............................           7,129            0.62         507,983            0.39          11,093
2004............................             109            0.63         477,429            0.48          2,826
----------------------------------------------------------------------------------------------------------------
NA = not available.
\1\ Data for 1998-2004 are from FAS (2005).
\2\ The nominal price data during 1996-2004 are from NASS (2005), and data for 1999-2004 are from NASS (2005).
\3\ China currently exports fragrant pears (and possibly Ya pears) to Canada. These data are from FAS (2005).
 

    As indicated in Table 1, after the initial rapid expansion in Ya 
pear imports from 1998 to 2000, growth continued at a slower rate. Over 
the 4-year period 2000-2003, U.S. imports of Ya pears from China 
increased an average of about 8 percent per year. During this 4-year 
period, the quantity of Ya pears imported from China was equivalent to 
about 1.3 percent of domestic pear production, and the average price of 
Ya pears was about one-and-a half times the average price of 
domestically produced pears.
    Import restrictions on Ya and fragrant pear imports from China 
imposed by the Canadian Food Inspection Agency are somewhat similar to 
those in this rule and, as a result, Canadian imports of Chinese Ya and 
fragrant pears provide additional information regarding potential 
future U.S. imports of these commodities. During the same 4-year 
period, 2000-2003, Canadian imports of pears from China increased an 
average of about 24 percent per year.
    We used time-series data on U.S. Ya pear imports from China, 
domestic fresh pear production and prices, and total domestic 
expenditures on fruit to estimate the rate of substitution between Ya 
pears and domestically produced pears in order to glean information 
about the potential rate of substitution between fragrant pear imports 
and domestic pears. In particular, we estimated a linear relationship 
between fresh domestic pear prices and a constant, fresh domestic 
production, and Ya pear imports from China. The coefficient estimate on 
Ya pear imports was found to be negative but not statistically 
different from zero, indicating that Ya pears do not substitute for 
domestically produced pears. If the relationship between imported 
fragrant pears and domestically grown pears is found to be similar to 
the modeled relationship between imported Ya pears and domestically 
grown pears, then the results of the regression analysis indicate that 
U.S. imports of fragrant pears from China will not compete with 
domestically produced pears during the next several years.
    Notwithstanding the expected insignificant effects of the rule on 
domestic pear production, allowing the importation of fragrant pears 
from China will provide benefits to U.S. importers and merchants of 
Chinese fragrant pears. The U.S. Small Business Administration defines 
a small pear importer (North American Industry Classification System 
[NAICS] category 424480, Fresh Fruit and Vegetable Merchant 
Wholesalers) as one that employs not more than 100 persons. In 1997,\4\ 
more than 96 percent (5,456 of 5,657) of fresh fruit and vegetable 
wholesalers would be considered small by SBA standards.\5\ There are no 
data to indicate directly the level of benefits that may accrue to 
small pear importers and merchants in the United States, but any new 
trade of a commodity (in this case, fragrant pears from China) can be

[[Page 76139]]

expected to benefit entities dealing in that commodity.
---------------------------------------------------------------------------

    \4\ Establishment and firm size is not yet available for the 
2002 Economic Census.
    \5\ 1997 Economic Census. Department of Commerce, U.S. Bureau of 
the Census. NAICS Category 424480: Fresh Fruit and Vegetable 
Merchant Wholesalers.
---------------------------------------------------------------------------

Conclusion

    We expect that allowing the importation of fragrant pears from 
China will not have a significant economic impact on a substantial 
number of small entities. Fragrant pears from China will not directly 
compete with domestically produced pears, assuming the demand for 
imported fragrant pears will be similar to that for imported Ya pears. 
If imports of fragrant pears increase over time, as has been the case 
for U.S. Ya pear imports and Canadian Ya and fragrant pear imports, it 
is possible that fragrant pears could compete with some varieties of 
domestically produced pears in the future, but only marginally given 
the small quantity of fragrant pears expected to be imported compared 
to domestic pear production. Fragrant pear importers and merchants, 
most of which are likely to be small entities, will benefit from the 
importation of fragrant pears from China.
    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 fragrant pears to be imported into the 
United States from the Korla region of Xinjiang Province in China. 
State and local laws and regulations regarding fragrant pears imported 
under this rule will 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 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 the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0227.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

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.

0
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. A new Sec.  319.56-2nn is added to read as follows:


Sec.  319.56-2nn  Administrative instructions: Conditions governing the 
entry of fragrant pears from China.

    Fragrant pears may be imported into the United States from China 
only under the following conditions:
    (a) Origin, growing, and harvest conditions. (1) The pears must 
have been grown in the Korla region of Xinjiang Province in a 
production site that is registered with the national plant protection 
organization of China.
    (2) All propagative material introduced into a registered 
production site must be certified free of the pests listed in this 
section by the national plant protection organization of China.
    (3) Within 30 days prior to harvest, the national plant protection 
organization of China or officials authorized by the national plant 
protection organization of China must inspect the registered production 
site for signs of pest infestation and allow APHIS to monitor the 
inspections. The national plant protection organization of China must 
provide APHIS with information on pest detections and pest detection 
practices, and APHIS must approve the pest detection practices.
    (4) If any of the quarantine pests listed in this section are found 
during the pre-harvest inspection or at any other time, the national 
plant protection organization of China must notify APHIS immediately.
    (i) Upon detection of Oriental fruit fly (Bactrocera dorsalis), 
APHIS may reject the lot or consignment and may prohibit the 
importation into the United States of fragrant pears from China until 
an investigation is conducted and APHIS and the national plant 
protection organization of China agree that appropriate remedial action 
has been taken.
    (ii) Upon detection of peach fruit borer (Carposina sasaki), yellow 
peach moth (Conogethes punctiferalis), apple fruit moth (Cydia 
inopinata), Hawthorn spider mite (Tetranychus viennensis), red plum 
maggot (Cydia funebrana), brown rot (Monilinia fructigena), Asian pear 
scab (Venturia nashicola), pear trellis rust (Gymnosporangium fuscum), 
Asian pear black spot (Alternaria spp.), or phylloxeran (Aphanostigma 
sp. poss. jackusiensis), APHIS may reject the lot or consignment and 
may prohibit the importation into the United States of fragrant pears 
from the production site for the season. The exportation to the United 
States of fragrant pears from the production site may resume in the 
next growing season if an investigation is conducted and APHIS and the 
national plant protection organization of China agree that appropriate 
remedial action has been taken. If any of these pests is detected in 
more than one registered production site, APHIS may prohibit the 
importation into the United States of fragrant pears from China until 
an investigation is conducted and APHIS and the national plant 
protection organization of China agree that appropriate remedial action 
has been taken.
    (5) After harvest, the national plant protection organization of 
China or officials authorized by the national plant protection 
organization of China must inspect the pears for signs of pest 
infestation and allow APHIS to monitor the inspections.
    (6) Upon detection of large pear borer (Numonia pivivorella), pear 
curculio (Rhynchites fovepessin), or Japanese apple curculio (R. 
heros), APHIS may reject the lot or consignment.
    (b) Packing requirements. (1) The fragrant pears must be packed in 
cartons that are labeled in accordance with Sec.  319.56-2(g).
    (2) The fragrant pears must be held in a cold storage facility 
while awaiting export. If fruit from unregistered production sites are 
stored in the same facility, the fragrant pears must be isolated from 
that other fruit.
    (c) Shipping requirements. (1) The fragrant pears must be shipped 
in insect-proof containers and all pears must be safeguarded during 
transport to

[[Page 76140]]

the United States in a manner that will prevent pest infestation.
    (2) The fragrant pears may be imported only under a permit issued 
by APHIS in accordance with Sec.  319.56-4.
    (3) Each shipment of pears must be accompanied by a phytosanitary 
certificate issued by the national plant protection organization of 
China stating that the conditions of this section have been met and 
that the shipment has been inspected and found free of the pests listed 
in this section.

(Approved by the Office of Management and Budget under control 
number 0579-0227)

    Done in Washington, DC, this 19th day of December 2005.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-24423 Filed 12-22-05; 8:45 am]
BILLING CODE 3410-34-P