[Federal Register Volume 75, Number 196 (Tuesday, October 12, 2010)]
[Proposed Rules]
[Pages 62484-62486]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25556]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 196 / Tuesday, October 12, 2010 / 
Proposed Rules

[[Page 62484]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2009-0086]
RIN 0579-AD26


Importation of Shepherd's Purse With Roots From the Republic of 
Korea Into the United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations concerning the 
importation of fruits and vegetables to allow the importation of fresh 
shepherd's purse with roots from the Republic of Korea into the United 
States under a combination of mitigations to reduce the risk of 
introducing plant pests. As a condition of entry, the shepherd's purse 
would have to be produced in accordance with a systems approach that 
would include requirements for importation of commercial consignments, 
pest-free place of production, removal of soil, and inspection for 
quarantine pests by the national plant protection organization of the 
Republic of Korea. The shepherd's purse would also have to be 
accompanied by a phytosanitary certificate with an additional 
declaration stating that it was grown, packed, and inspected and found 
to be free of pests in accordance with the proposed requirements. This 
action would allow the importation of fresh shepherd's purse with roots 
from the Republic of Korea while continuing to protect against the 
introduction of plant pests into the United States.

DATES: We will consider all comments that we receive on or before 
December 13, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0086 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2009-0086, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2009-0086.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Dorothy Wayson, Regulatory 
Coordination Specialist, PPQ, APHIS, 4700 River Road Unit 39, 
Riverdale, MD 20737-1231; (301) 734-0627.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-50, 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 national plant protection organization (NPPO) of the Republic 
of Korea has requested that the Animal and Plant Health Inspection 
Service (APHIS) amend the regulations to allow fresh shepherd's purse 
with roots from the Republic of Korea to be imported into the United 
States. Currently, shepherd's purse without roots is authorized for 
entry into the United States from the Republic of Korea.\1\
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    \1\ Conditions for the importation of shepherd's purse without 
roots from the Republic of Korea are listed in the Fruits and 
Vegetables Import Requirements database (available at http://www.aphis.usda.gov/favir) in accordance with Sec.  319.56-4. The 
shepherd's purse from the Republic of Korea is also subject to the 
requirements listed in Sec.  319.56-3 that are applicable to the 
importation of all fruits and vegetables.
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    As part of our evaluation of the Republic of Korea's request, we 
prepared a pest risk assessment (PRA), titled ``Importation of 
Shepherd's Purse (Capsella bursa-pastoris (L.) Medik.) leaves and stems 
with roots from Republic of Korea into the United States, A Pathway-
Initiated Risk Assessment'' (October 2007). The PRA evaluated the risks 
associated with the importation of shepherd's purse into the United 
States from the Republic of Korea.
    The PRA identified 11 pests of quarantine significance present in 
the Republic of Korea that could be introduced into the United States 
through the importation of fresh shepherd's purse with roots:
Insect pests:
     Sawfly (Athalia rosae)
     Leaf miner (Chromatomyia horticola)
     Turnip moth (Agrotis segetum)
     American bollworm moth (Helicoverpa armigera)
     Cabbage webworm moth (Hellula undalis, Fabricius)
     The cabbage moth (Mamestra brassicae)
     Oriental leafworm moth (Spodoptera litura, Fabricius)
Nematodes:
     Hemicycliophora koreana
     Paratylenchus pandus
     Rotylenchus orientalis
     Rotylenchus pini
    Based on the information contained in the PRA, APHIS has determined 
that measures beyond standard port-of-entry inspection are required to 
mitigate the risks posed by these plant pests. To recommend specific 
measures to mitigate those risks, we prepared a risk management 
document (RMD). Copies of the PRA and RMD may be obtained from the 
person listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site (see ADDRESSES above for instructions for 
accessing Regulations.gov).
    Based on the recommendations of the RMD, we are proposing to allow 
the importation of shepherd's purse with roots from the Republic of 
Korea into the continental United States only if

[[Page 62485]]

they are produced in accordance with a systems approach. The systems 
approach we are proposing would require that the shepherd's purse with 
roots be:
     Grown in a pest-free place of production for quarantine 
nematodes,
     Free from soil,
     Imported in commercial consignments only, and
     Inspected by the NPPO of the Republic of Korea and found 
free of quarantine pests.
    The shepherd's purse with roots from the Republic of Korea would 
also have to be accompanied by a phytosanitary certificate with an 
additional declaration stating that the shepherd's purse leaves and 
stems with roots in the consignment have been grown in a pest-free 
place of production for quarantine nematodes, have been inspected and 
found free of quarantine pests, and are free from soil.
    We are proposing to add the systems approach to the regulations in 
a new Sec.  319.56-51 governing the importation of shepherd's purse 
with roots from the Republic of Korea into the United States. The 
mitigation measures in the proposed systems approach are discussed in 
greater detail below.
    Paragraph (a) of Sec.  319.56-51 would require that shepherd's 
purse with roots be grown in places of production that are registered 
with the NPPO of the Republic of Korea and that have been determined 
free from nematodes. Their relatively small size makes the nematodes 
difficult to detect through regular inspections, so pest-free places of 
production are necessary. Fields must be certified free of the 
quarantine nematodes by sampling and microscopic inspection of the 
samples by the Korean NPPO. The sampling and inspection protocol must 
be preapproved by APHIS. APHIS will monitor the sampling and inspection 
records maintained by the Korean NPPO.
    Paragraph (b) of Sec.  319.56-51 would require that shepherd's 
purse with roots be free from soil. This would also help to prevent the 
introduction of nematodes and insect pests into the United States.
    Paragraph (c) of Sec.  319.56-51 would state that shepherd's purse 
with roots may be imported in commercial consignments only. Produce 
grown commercially is less likely to be infested with plant pests than 
noncommercial consignments. Noncommercial consignments are more prone 
to infestations because the commodity is often ripe to overripe and is 
often grown with little or no pest control. Commercial consignments, as 
defined in Sec.  319.56-2, are consignments that an inspector 
identifies as having been imported for sale and distribution. Such 
identification is based on a variety of indicators, including, but not 
limited to: Quantity of produce, type of packaging, identification of 
grower or packinghouse on the packaging, and documents consigning the 
fruits or vegetables to a wholesaler or retailer.
    Paragraph (d) of Sec.  319.56-51 would require that each 
consignment of shepherd's purse with roots be accompanied by a 
phytosanitary certificate issued by the NPPO of the Republic of Korea 
with an additional declaration stating that the specific conditions of 
Sec.  319.56-51 have been met.
    The general requirements in the regulations in Sec.  319.56-3 
provide that all imported fruits and vegetables shall be inspected, and 
shall be subject to such disinfection at the port of first arrival as 
may be required by an inspector. Section 319.56-3 also provides that 
any shipment of fruits and vegetables may be refused entry if the 
shipment is so infested with plant pests that an inspector determines 
that it cannot be cleaned or treated. We believe that the proposed 
conditions described above, as well as all other applicable 
requirements in Sec.  319.56-3, would be adequate to prevent the 
introduction of plant pests into the United States associated with 
fresh shepherd's purse leaves and stems with roots from the Republic of 
Korea.
    We have determined that these risk management measures will provide 
an appropriate level of phytosanitary protection against pests of 
quarantine concern associated with fresh shepherd's purse leaves and 
stems with roots from the Republic of Korea.

 Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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 have prepared an initial regulatory flexibility analysis for 
this proposed rule. The analysis examines the potential economic 
effects of this action on small entities, as required by the Regulatory 
Flexibility Act. The analysis identifies domestic producers of 
shepherd's purse, and wholesalers that import fresh shepherd's purse as 
the small entities most likely to be affected by this action and 
considers the effects of increased imports of fresh shepherd's purse 
with roots.
    The Republic of Korea does not keep official statistics on minor 
agricultural commodities such as shepherd's purse. However, production 
and export data have been gathered from farmers and wholesalers at 
Garak-tong market, one of the biggest wholesale agricultural markets in 
Seoul.\2\ Based on these data, yearly sales of shepherd's purse at 
Garak-tong market have averaged 1,422 metric tons over the past 5 
years. Most of the shepherd's purse production in the Republic of Korea 
is consumed domestically. During the same 5-year period, an average of 
only 298 kilograms per year were exported, i.e., 0.02 percent of 
reported production. Expected initial exports to the United States 
under this proposed rule as estimated by the NPPO of the Republic of 
Korea is 24 metric tons, which is far above the reported 2005-2009 
export levels. Even with those higher export levels, based on the 
information presented in the analysis, we expect affected entities 
would experience minimal economic effects as a result of shepherd's 
purse with roots arriving in the United States from the Republic of 
Korea.
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    \2\ Yunhee Kim, Agricultural Specialist, USDA/APHIS, American 
Embassy, Seoul, South Korea. The Garak-tong market has 131 acres of 
covered space.
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    We invite comment on our initial regulatory flexibility analysis, 
which is posted with this proposed rule on the Regulations.gov Web site 
(see ADDRESSES above for instructions for accessing Regulations.gov) 
and may be obtained from the person listed under FOR FURTHER 
INFORMATION CONTACT.

Executive Order 12988

    This proposed rule would allow fresh shepherd's purse with roots to 
be imported into the United States from the Republic of Korea. If this 
proposed rule is adopted, State and local laws and regulations 
regarding shepherd's purse with roots imported under this rule would be 
preempted while the plant is in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public and would 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. If this proposed rule is 
adopted, 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 section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping

[[Page 62486]]

requirements included in this proposed rule have been submitted for 
approval to the Office of Management and Budget (OMB). Please send 
written comments to the Office of Information and Regulatory Affairs, 
OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please 
state that your comments refer to Docket No. APHIS-2009-0086. Please 
send a copy of your comments to: (1) Docket No. APHIS-2009-0086, 
Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    APHIS is proposing to amend the regulations concerning the 
importation of fruits and vegetables to allow for the importation of 
fresh shepherd's purse with roots from the Republic of Korea into the 
United States under a combination of mitigations to reduce the risk of 
introducing a variety of pests. As a condition of entry, fresh 
shepherd's purse would have to be produced in accordance with a systems 
approach that would include requirements for importation of commercial 
consignments, pest-free place of production, and inspection for 
quarantine pests by the national plant protection organization (NPPO) 
of the Republic of Korea.
    Implementing this rule would require the completion of a 
phytosanitary certificate, inspections, and recordkeeping. We are 
soliciting comments from the public (as well as affected agencies) 
concerning our proposed information collection and recordkeeping 
requirements. These comments will help us:
    (1) Evaluate whether the information collection is necessary for 
the proper performance of our agency's functions, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
information collection, including the validity of the methodology and 
assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond, (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.53928 hours per response.
    Respondents: Importers; national plant protection organization of 
the Republic of Korea.
    Estimated annual number of respondents: 30.
    Estimated annual number of responses per respondent: 9.333.
    Estimated annual number of responses: 280.
    Estimated total annual burden on respondents: 151 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
851-2908.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this proposed 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.

    Accordingly, we propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

    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.

    2. A new Sec.  319.56-51 is added to read as follows:


Sec.  319.56-51  Shepherd's purse with roots from the Republic of 
Korea.

    Shepherd's purse (Capsella bursa-pastoris (L.) Medick) with roots 
from the Republic of Korea may be imported only under the following 
conditions:
    (a) The shepherd's purse with roots must be grown in a pest-free 
place of production that is registered with the national plant 
protection organization (NPPO) of the Republic of Korea. Fields must be 
certified free of the quarantine nematodes Hemicycliophora koreana, 
Paratylenchus pandus, Rotylenchus orientalis, and Rotylenchus pini by 
sampling and microscopic inspection of the samples by the NPPO of the 
Republic of Korea. The sampling and inspection protocol must be 
preapproved by APHIS.
    (b) The shepherd's purse with roots must be free from soil.
    (c) The shepherd's purse with roots must be imported in commercial 
shipments only.
    (d) Each consignment of shepherd's purse with roots must be 
accompanied by a phytosanitary certificate of inspection issued by the 
NPPO of the Republic of Korea stating that the shipment has been 
inspected and found free of quarantine pests with an additional 
declaration stating that the shepherd's purse with roots has been 
produced and inspected in accordance with the requirements of 7 CFR 
319.56-51.

    Done in Washington, DC, this 5th day of October 2010.
Gregory Parham,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-25556 Filed 10-8-10; 8:45 am]
BILLING CODE 3410-34-P