[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Rules and Regulations]
[Pages 76133-76140]
From the Federal Register Online via the Government Publishing 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.
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\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.
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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.
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\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