[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26511-26514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12929]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules
and Regulations
[[Page 26511]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2007-0153]
RIN 0579-AC88
Importation of Eggplant From Israel
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the fruits and vegetables regulations to allow
the importation into the continental United States of commercial
consignments of fresh eggplant from Israel. As a condition of entry,
the eggplant must be grown under a systems approach that includes
requirements for pest exclusion at the production site, fruit fly
trapping inside and outside the production site, and pest-excluding
packinghouse procedures. The eggplant must be accompanied by a
phytosanitary certificate issued by the Israeli national plant
protection organization with an additional declaration confirming that
the eggplants have been produced in accordance with those requirements.
This action will allow for the importation of commercial consignments
of fresh eggplant from Israel into the United States while continuing
to provide protection against the introduction of quarantine pests.
DATES: Effective Date: July 6, 2009.
FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import
Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700
River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-0627.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR
319.56-1 through 319.56-48, 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.
On November 12, 2008, we published in the Federal Register (73 FR
66807-66811, Docket No. APHIS-2007-0153) a proposal \1\ to allow the
importation into the continental United States of commercial
consignments of fresh eggplant from Israel if they were produced in
accordance with a systems approach. The proposed systems approach
included the following measures:
---------------------------------------------------------------------------
\1\ To view the proposed rule and the comments we received, go
to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0153.
---------------------------------------------------------------------------
Growing the eggplant in pest-exclusionary structures;
Trapping both inside and outside the pest-exclusionary
structures for Ceratitis capitata (Mediterranean fruit fly, or Medfly);
Packinghouse procedures designed to exclude quarantine
pests.
In addition, we proposed to require all consignments of eggplant
from Israel to be accompanied by a phytosanitary certificate with a
declaration stating that the eggplant had been produced in accordance
with the proposed requirements.
We solicited comments concerning our proposal for 60 days, ending
January 12, 2009. We received three comments by that date. They were
from private citizens and the Israeli national plant protection
organization (NPPO). They are discussed below.
One commenter expressed concern that the quarantine pests
associated with eggplant from Israel may be a serious health threat to
Americans.
The commenter provided no specific information regarding the health
risk posed by these pests. We have determined that these pests pose no
human health risk.
We proposed to require that any vents or openings in the pest-
exclusionary structures (other than the double self-closing doors) be
covered with 1.6 mm or smaller screening in order to prevent the entry
of pests into the pest-exclusionary structure. One commenter expressed
concern that one quarantine pest identified in the pest risk analysis
(PRA) prepared for the proposed rule, Scirtothrips dorsalis, may be
small enough to pass through the 1.6 mm screening and stated that the
structures should completely exclude S. dorsalis. This commenter also
questioned whether inspection would be an effective mitigation for S.
dorsalis, noting its small size.
As noted in the proposed rule, the thrips species is at least
partially discouraged by the physical barrier of the 1.6 mm mesh. Also,
thrips are external feeders and would most likely be detected during
inspection of the pest-exclusionary structures. Under the final rule,
pest-exclusionary structures will be inspected monthly for the six
quarantine pests beginning 2 months before harvest and continuing for
the duration of the harvest, and each consignment of eggplant will be
inspected for all quarantine pests, including S. dorsalis, by the
Israeli NPPO. These inspections are completed by trained inspectors who
are looking for these quarantine pests specifically. Based on our
experience inspecting for S. dorsalis and other external feeders, we
have determined that inspection will be an effective mitigation against
S. dorsalis in eggplant from Israel.
One commenter stated that the proposed rule incorporated
preventative measures to prevent pest infestation, but did not include
very many secondary checks for pests.
As noted earlier, the systems approach includes inspections to
verify freedom from quarantine pests at multiple points during the
production process. These inspections begin 2 months before harvest and
continue throughout the entire shipping process.
We proposed to require trapping for Medfly in the agricultural
region along the Arava Highway 90 and in the residential area of Paran.
One commenter stated that trapping for Medfly is carried out in all
agricultural regions in the Arava as well as in all the residential
areas, including Paran.
This trapping is consistent with our proposed requirements, and an
expansion of the trapping area will not affect the trapping
requirements that we included in the proposed rule.
One commenter addressed supporting documents provided with the
proposal.
[[Page 26512]]
For example, the risk management document (RMD) discussed the use of
McPhail traps for trapping Medfly. The commenter stated that Israel
currently uses Tephri traps.
While the RMD specifically referred to McPhail traps, we proposed
to allow any APHIS-approved traps to be used in the trapping for
Medfly. The Tephri trap, which is a modified McPhail trap, is approved
for use by APHIS under this final rule.
The RMD referred to ``fruit fly material'' not being permitted
within 50 meters of the entry door of the packinghouse. This commenter
requested further clarification on the term ``fruit fly material.''
This refers to any organic material that could become host material
for the fruit fly. The proposed rule correctly referred to ``fruit fly
host material.'' The omission of the word ``host'' in the RMD was a
typographical error.
The PRA referred to Israel using Malathion bait to control fruit
fly populations. The commenter stated that the Israeli NPPO currently
uses a sterile insect treatment program.
This program is complementary to the Malathion bait spray. No
changes to the proposed rule are necessary in response to this comment.
One commenter stated that it would take decades for Israeli
eggplant growers to make a profit under the proposed regulations and
that the benefit to Israeli growers is small compared to the risk the
United States is taking on by importing eggplant.
In accordance with the Plant Protection Act (7 U.S.C. 7701 et
seq.), we base our decisions to allow the importation of fruits and
vegetables on whether the risk associated with their importation can be
successfully mitigated, not on economic issues such as whether
exporting eggplant is a profit-making venture for farmers in Israel.
The systems approach we proposed will effectively mitigate the pest
risk associated with the importation of eggplant from Israel.
One commenter asked how importing eggplant from Israel would affect
the U.S. relationship with current trading partners in eggplant
(specifically China and India).
The economic analysis in the proposed rule reported that China and
India are world leaders in the production of eggplant, and it appears
that the commenter took that to mean that the United States imports
eggplant from those countries, which is not the case. The importation
into the United States of eggplant from China and India is not
currently authorized. That being said, we do not expect that allowing
the importation of eggplant from Israel will negatively affect our
trading relationships with any of the countries that currently export
eggplant to the United States, as Israel is a small exporter of
eggplant. In 2006, Israel's exports of commercial shipments were valued
at only $20,000. This value is only 0.05 percent of the value of U.S.
eggplant imports in 2006.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, without
change.
Note: In our November 2008 proposed rule, we proposed to add the
conditions governing the importation of eggplant from Israel as
Sec. 319.56-48. In this final rule, those conditions are added as
Sec. 319.56-49.
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 into the continental United States of eggplant from Israel
under certain conditions. As a condition of entry, the eggplant must be
grown under a systems approach that will include requirements for pest
exclusion at the production site, fruit fly trapping inside and outside
the production site, and pest-excluding packinghouse procedures. The
eggplant must be accompanied by a phytosanitary certificate issued by
the Israeli NPPO with an additional declaration confirming that the
eggplant have been produced in accordance with those requirements. This
action will allow for the importation of commercial consignments of
fresh eggplant from Israel into the United States while continuing to
provide protection against the introduction of quarantine pests.
Eggplant, which is native to India and Pakistan, is a warm-season
crop that is sensitive to cool temperatures. World production of
eggplant is highly concentrated, with 83 percent of output by the top
two producers, China (55 percent) and India (28 percent), and with the
United States a distant 20th in production.
According to the 2002 Census of Agriculture, there were 50,000
farms in 47 States that may produce, among other vegetables, some
eggplant, but only about 4 percent of the 50,000 farms reported
harvesting eggplant. In all, about 7,000 acres are devoted to eggplant
production in the United States, with 72 percent of eggplant production
taking place in 11 counties in 4 States: California, Florida, Georgia,
and New Jersey (table 1). In addition, 63 percent of the number of
acres planted in eggplant in the United States are in these four
States. Production at a much lower level takes place in other States
including Hawaii, Michigan, and New York.
Table 1--2006 State-Level Production of Eggplants in the United States
------------------------------------------------------------------------
Eggplant Number of acres
States/counties production planted with
(metric tons) eggplant
------------------------------------------------------------------------
California (Fresno and Riverside)... 17,690.11 1,364
Florida (Palm Beach, Hillsborough, 15,875.74 1,174
Dade)..............................
Georgia (Colquitt, Echols, Lowndes). 14,870.75 1,100
New Jersey (Gloucester, Cumberland, 11,748.05 800
Atlantic)..........................
Sum of 4 States..................... * 60,184.65 ** 4,438
United States....................... 83,914.61 7,000
------------------------------------------------------------------------
Source: United States Department of Agriculture (USDA), Economic
Research Service (ERS), Vegetables and Melons Situation and Outlook
Yearbook, December 2006; U.S. Census of Agriculture, 2002.
* (72% of production.)
** (63% of planted area.)
[[Page 26513]]
Despite a per-capita consumption rate of less than 1 pound, the
United States is the leading importer of eggplant in the world,
accounting for 20 percent of world eggplant import volume.\2\ The next
largest eggplant importers are France with 15 percent, Syria with 12
percent, Germany with 11 percent, and Canada with 9 percent of world
eggplant import volume. These 5 countries account for 67 percent of
world eggplant imports. The remaining 33 percent of world eggplant
imports is divided among the rest of the world. Between 2004 and 2006,
the United States imported on average $45 million worth of eggplant
(table 2).
---------------------------------------------------------------------------
\2\ USDA, ERS, Vegetables and Melons Outlook/VGS-318/December
14, 2006 (pages 23-27).
---------------------------------------------------------------------------
Most U.S. eggplant imports enter during the cooler months of the
year. Florida is the only domestic shipper during the winter.\3\
---------------------------------------------------------------------------
\3\ On average, during 2004-06, the winter season (January-
March) accounted for 55 percent of U.S. eggplant imports; the spring
season (April-June) accounted for 20 percent; the summer season
(July-September) accounted for 5 percent; and, the fall season
(October-December) accounted for 31 percent.
Table 2--U.S. Trade of Fresh Eggplants, 2004-2006
----------------------------------------------------------------------------------------------------------------
U.S. imports U.S. exports Net imports
----------------------------------------------------------------------------------------------------------------
(Value in thousand dollars) ..............
----------------------------------------------------------------------------------------------------------------
2004............................................................ $49,028 $8,148 $40,880
2005............................................................ $45,981 $8,735 $37,246
2006............................................................ $39,986 $8,943 $31,043
----------------------------------------------------------------------------------------------------------------
(Quantities in metric tons) ..............
----------------------------------------------------------------------------------------------------------------
2004............................................................ 49,768.4 9,669.1 40,099.3
2005............................................................ 54,096.8 9,660.5 44,436.3
2006............................................................ 49,065.0 9,626.2 39,438.8
----------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Commerce, Bureau of Census, as reported by Global Trade Information Services. Note:
Based on the Harmonized Schedules 070930.
Impact on Small Entities
U.S. entities that could be affected by this rule are domestic
producers of fresh eggplant and wholesalers that import fresh eggplant.
Businesses producing fresh eggplant are classified in the North
American Industry Classification System (NAICS) within the category of
other vegetable (except potato) and melon farming (NAICS 111219). The
Small Business Administration's (SBA) small-entity standard for this
category is $750,000 or less in annual receipts. While available data
do not provide the number of U.S. eggplant-producing entities or
information on the size distribution of U.S. eggplant-producing
entities, it is reasonable to assume that the majority of the
operations are small by SBA standards, based on the fact that the
average vegetable farm is small.
Israel is a small exporter of eggplant. For example, in 2006
Israel's exports of commercial shipments of fresh eggplant were valued
at only $20,000. This value is only 0.05 percent of the value of U.S.
eggplant imports in 2006 (nearly $40 million). In other words, even if
all of Israel's 2006 worldwide eggplant exports are diverted entirely
to the United States, they will represent a negligible share of total
U.S. imports and an even smaller share of the U.S. eggplant supply.
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 eggplant to be imported into the United
States from Israel. State and local laws and regulations regarding
eggplant imported under this rule will be preempted while the fruit is
in foreign commerce. Fresh 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 0579-0350.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizens' access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.
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. 319.56-49 is added to read as follows:
Sec. 319.56-49 Eggplant from Israel.
Eggplant (Solanum melongena L.) may be imported into the
continental United States from Israel only under the conditions
described in this section. These conditions are designed to prevent the
introduction of the following quarantine pests: Ceratitis capitata,
Eutetranychus orientalis, Helicoverpa armigera, Nipaecoccus
[[Page 26514]]
viridis, Scirtothrips dorsalis, and Spodoptera littoralis.
(a) Approved pest-exclusionary structures. The eggplant must be
grown in pest-exclusionary structures in approved production sites in
the Arava Valley of Israel by growers registered with the Israeli
national plant protection organization (NPPO). Initial approval of the
production sites must be completed jointly by the Israeli NPPO and
APHIS.
(1) The pest-exclusionary structures must be equipped with double
self-closing doors.
(2) Any vents or openings in the pest-exclusionary structures
(other than the double self-closing doors) must be covered with 1.6 mm
or smaller screening in order to prevent the entry of pests into the
pest-exclusionary structure.
(3) The pest-exclusionary structures must be inspected periodically
by the Israeli NPPO or its approved designee to ensure that sanitary
procedures are employed to exclude plant pests and diseases and to
verify that the screening is intact.
(4) The pest-exclusionary structures also must be inspected monthly
for the quarantine pests listed in the introductory text of this
section by the Israeli NPPO or its approved designee, beginning 2
months before harvest and continuing for the duration of the harvest.
APHIS must be granted access to inspect or monitor the pest-
exclusionary structures during this period as well. If, during these
inspections, any quarantine pests listed in the introductory text of
this section are found inside a pest-exclusionary structure, the
Israeli NPPO will immediately prohibit that pest-exclusionary structure
from exporting eggplant to the continental United States and notify
APHIS of the action. The prohibition will remain in effect until the
Israeli NPPO and APHIS agree that the risk has been mitigated.
(b) Trapping for Medfly. Trapping for Mediterranean fruit fly
(Medfly, Ceratitis capitata) is required both inside and outside the
pest-exclusionary structures. Trapping must begin 2 months before
harvest and continue for the duration of the harvest.
(1) Inside the pest-exclusionary structures. APHIS-approved fruit
fly traps with an approved protein bait must be placed inside the pest-
exclusionary structures at a density of four traps per hectare, with a
minimum of at least two traps per pest-exclusionary structure. The
traps must be serviced at least once every 7 days. If a single Medfly
is found in a trap inside a pest-exclusionary structure, the Israeli
NPPO will immediately prohibit that pest-exclusionary structure from
exporting eggplant to the continental United States and notify APHIS of
the action. The prohibition will remain in effect until the Israeli
NPPO and APHIS agree that the risk has been mitigated.
(2) Outside the pest-exclusionary structures. (i) No shade trees
are permitted within 10 meters of the entry door of the pest-
exclusionary structures, and no fruit fly host plants are permitted
within 50 meters of the entry door of the pest-exclusionary structures.
While trapping is being conducted, no fruit fly host material (such as
fruit) may be brought into the pest-exclusionary structures or be
discarded within 50 meters of the entry door of the pest-exclusionary
structures.
(ii) A treatment jointly approved by the Israeli NPPO and APHIS
must be applied for the duration of the eggplant harvest in the areas
of the Arava Valley where fruit fly host material occurs in backyards.
(iii) Trapping for Medfly must be conducted by the Israeli NPPO or
its approved designee throughout the year in the agricultural region
along the Arava Highway 90 and in the residential area of Paran.
(iv) Trapping records must be kept and made available for APHIS
review upon request.
(c) Packinghouse procedures. The eggplant must be packed within 24
hours of harvest in a pest-exclusionary packinghouse. While packing the
eggplant for export to the continental United States, the packinghouse
may only accept eggplant from approved pest-exclusionary structures. No
shade trees are permitted within 10 meters of the entry door of the
packinghouse, and no fruit fly host plants are permitted within 50
meters of the entry door of the packinghouse. The eggplant must be
safeguarded by a pest-proof screen or plastic tarpaulin while in
transit to the packinghouse and while awaiting packing. Packinghouse
procedures must include culling of any visibly damaged, overripe, or
infested eggplant. The eggplant must be packed in either individual
insect-proof cartons or boxes labeled with the specific place of origin
or non-insect-proof cartons or boxes that are covered by insect-proof
mesh or plastic tarpaulins. Covered non-insect-proof cartons or boxes
must be placed in shipping containers that have identification labels
indicating the specific place of origin. These safeguards must remain
intact until the arrival of the eggplant in the continental United
States or the consignment will not be allowed to enter the continental
United States.
(d) Commercial consignments. Eggplant from Israel may be imported
in commercial consignments only.
(e) Phytosanitary certificate. Each consignment of eggplant must be
accompanied by a phytosanitary certificate of inspection issued by the
Israeli NPPO with an additional declaration reading as follows: ``The
eggplant in this consignment has been grown in an approved production
site and inspected and found free of the pests listed in 7 CFR 319.56-
49.''
(Approved by the Office of Management and Budget under control
number 0579-0350)
Done in Washington, DC, this 28th day of May 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-12929 Filed 6-2-09; 8:45 am]
BILLING CODE 3410-34-P