[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26511-26514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12929]



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Rules and Regulations
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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