[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Rules and Regulations]
[Pages 75007-75011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30532]
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Rules and Regulations
Federal Register
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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
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Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 /
Rules and Regulations
[[Page 75007]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2011-0007]
RIN 0579-AD42
Importation of Sand 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 sand pears (Pyrus pyrifolia) from China into the
United States. As a condition of entry, sand pears from areas in China
in which the Oriental fruit fly (Bactrocera dorsalis) is not known to
exist will have to be produced in accordance with a systems approach
that includes requirements for registration of places of production and
packinghouses, sourcing of pest-free propagative material, inspection
for quarantine pests at set intervals by the national plant protection
organization of China, bagging of fruit, safeguarding, labeling, and
importation in commercial consignments. Sand pears from areas in China
in which Oriental fruit fly is known to exist may be imported into the
United States if, in addition to these requirements, the places of
production and packinghouses have a monitoring system in place for
Oriental fruit fly and the pears are treated with cold treatment. All
sand pears from China will also be required to be accompanied by a
phytosanitary certificate with an additional declaration stating that
all conditions for the importation of the pears have been met and that
the consignment of pears has been inspected and found free of
quarantine pests. This action will allow for the importation of sand
pears from China into the United States while continuing to provide
protection against the introduction of quarantine pests.
DATES: Effective Date: January 18, 2013.
FOR FURTHER INFORMATION CONTACT: Dr. Farrell Wise, Supervisory
Agriculturist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700
River Road Unit 133, Riverdale, MD 20737; (301) 851-2280.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR
319.56-1 through 319.56-56, 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. The regulations
currently allow for the importation of both Ya pears (Pyrus
bretschneideri) and fragrant pears (Pyrus sp. nr. communis) from China.
The national plant protection organization (NPPO) of China
requested that the Animal and Plant Health Inspection Service (APHIS)
amend the regulations to allow sand pears \1\ (Pyrus pyrifolia) from
China also to be imported into the United States.
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\1\ We previously referred to Pyrus pyrifolia as ``Chinese sand
pear.'' However, we have discovered that the accepted international
nomenclature for Pyrus pyrifolia is simply ``sand pear.'' Hence,
throughout this document, we refer to Pyrus pyrifolia as sand pear.
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As part of our evaluation of China's request, we prepared a pest
risk assessment (PRA), titled ``Importation of Fresh Fruit of Chinese
Sand Pear, Pyrus pyrifolia, from China, including the Special
Administrative Regions of Hong Kong and Macau, into the Entire United
States, Including all Territories'' (July 2009). The PRA evaluated the
risks associated with the importation of sand pears into the United
States from China, and identified 16 pests of quarantine significance
present in China that could be introduced into the United States
through the importation of sand pears. The PRA presented a number of
potential options to mitigate the risks posed by these plant pests.
Based on these options, we prepared a risk management document (RMD).
The RMD recommended specific measures to mitigate these risks.
Based on the recommendations of the RMD, on December 16, 2011, we
published a proposed rule \2\ in the Federal Register (76 FR 78168-
78172, Docket No. APHIS-2011-0007) to authorize the importation of sand
pears from China into the United States. We solicited comments
concerning the proposed rule for 60 days ending February 14, 2012. We
received five comments by that date. They were from the NPPO of China,
a State department of agriculture, an organization representing State
departments of agriculture, a technical committee representing the U.S.
pear industry, and a private citizen. The comments we received are
discussed below, by topic.
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\2\ To view the proposed rule, supporting documents, and the
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0007.
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Comments Regarding the Pest Risk Assessment
The PRA identified the following pests of quarantine significance
as being likely to follow the pathway on imported sand pears from
China:
Acrobasis pyrivorella, pear fruit moth.
Alternaria gaisen Nagano, the cause of black spot of pear.
Amphitetranychus viennensis (Zacher), Hawthorn spider
mite.
Aphanostigma iaksuiense (Kishida), an aphid.
Bactrocera dorsalis, Oriental fruit fly.
Caleptrimerus neimongolensis Kuang and Geng, a mite.
Carposina sasakii Matsumora, peach fruit moth.
Ceroplastes japonicus Green, Japanese wax scale.
Ceroplastes rubens Maskell, red wax scale.
Congothes punctiferalis (Guen[eacute]e), yellow peach
moth.
Grapholita inopinata, Manchurian fruit moth.
Guignardia pyricola (Nose) W. Yamamoto, a phytopathogenic
fungus.
Monilinia fructigena Honey in Whetzel, the cause of brown
rot.
Phenacoccus pergandei Cockerell, a mealybug.
Planococcus kraunhiae (Kuwana), a mealybug.
Venturia nashicola Tanaka & Yamamoto, pear scab fungus.
One commenter stated that recent research conducted on diseases of
Malus spp. has discovered that the
[[Page 75008]]
causal agent of apple and pear ring spot, which had long been
considered to be G. pyricola (Nose) W. Yamamoto, is in fact
Botryosphaeria dothidea. The commenter pointed out that B. dothidea is
widely prevalent in the United States, and stated that it thus should
not be considered a pest of quarantine significance. The commenter also
stated that, based on this research, G. pyricola should not be
considered a pest of quarantine significance for sand pears from China.
The commenter cited a peer-reviewed article \3\ (referred to below as
Tang et al.) detailing the research that had been conducted.
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\3\ Tang et al., ``Phylogenetic and pathogenic analyses show
that the causal agent of apple ring rot in China is Botryosphaeria
dothidea,'' Plant Disease 4 (April 2012), 486-497.
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We agree that Tang et al. provides evidence in support of B.
dothidea being a causal agent of apple ring spot. However, we do not
consider this evidence sufficient to remove G. pyricola from the list
of pests of quarantine significance for sand pears from China. The
research detailed in Tang et al. appears to have focused primarily on
Malus spp. Researchers included only a few fungi of Pyrus spp. for
evaluation, and the discussion section of Tang et al. refers
exclusively to fungi isolated from Malus spp. It is even unclear
whether B. dothidea was the only Botryosphaeria species that
researchers isolated from Pyrus spp.
The scope and nature of the research conducted on Pyrus spp. is
unclear in Tang et al. In order for us to consider removing G. pyricola
from the list of pests of quarantine significance for sand pears from
China, Tang et al. would have to specify that the research conducted on
Malus spp. is directly applicable to Pyrus spp. It does not do so;
hence we continue to consider G. pyricola a pest of quarantine
significance for sand pears from China.
Another commenter stated that the list of pests of quarantine
significance for sand pears from China should be expanded to include
two additional pests, Alternaria yaliinficiens, a phytopathogenic
fungus, and Monilia polystroma, the cause of Asiatic brown rot. The
commenter pointed out that A. yaliinficiens is frequently detected on
Ya pears in China, and M. polystroma, a well-documented pest of sand
pears, is known to exist in China.
We have been able to find no evidence suggesting that sand pears
are a host of A. yaliinficiens, and the commenter did not provide any
references on this subject. Ya pears are Pyrus bretschneideri, a
separate species from sand pears.
We agree that M. polystroma is known to exist in China, and sand
pears are a known host of this pest. However, to date, M. polystroma
has only been detected in Heilongjiang province. This province does not
produce sand pears for export and is geographically isolated from the
provinces in China that account for the bulk of pear exports from
China, Hebei and Shandong. There is, moreover, no evidence of
artificial spread of M. polystroma within China. For these reasons, at
this time, we do not consider M. polystroma likely to follow the
pathway of sand pears imported from China. We will, however, continue
to monitor the presence of M. polystroma in China and, if necessary,
take appropriate action to prevent its introduction.
A commenter asked that the PRA be updated to include a list of all
pests of quarantine significance that have been detected on sand pears
from China exported to other countries.
Foreign countries are free to designate plant pests as being of
quarantine significance, without reference to the designations of other
countries. Thus, there is no guarantee that a foreign country's pest
list for sand pears is equivalent to our own. Moreover, foreign
countries' conditions for importation of fruits and vegetables often
vary significantly from those of the United States. Accordingly, a
foreign country's pest interception data for a particular commodity
should not be considered a reliable predictor of possible pest
interceptions for that same commodity at ports of entry within the
United States. We are therefore not amending the PRA in the manner
requested by the commenter.
The same commenter pointed out that the PRA contained a list of
pest interceptions on Ya and fragrant pears from China imported into
the United States between 1995 and 2009, but this list did not include
information for 2010 or 2011. The commenter also pointed out that the
list did not group detections based on the port of entry at which the
pest was detected. The commenter asked that the list be updated to
include information through 2011 and to sort this information by port
of entry.
We do not consider such updates to be necessary. Interceptions in
2010 and 2011 do not disclose any additional pests of quarantine
significance that had not previously been detected on the pears.
Moreover, the list was provided in order to illustrate the starting
point from which we conducted our evaluation of the pests of quarantine
significance that could follow the pathway on sand pears from China
imported into the United States. Hence, changing the scope of the list
or its presentation would not alter the results of our evaluation.
Comments Regarding the Proposed Rule
One commenter stated that, based on the number of pests of
quarantine significance likely to follow the pathway on sand pears
imported into the United States from China, the plant pest risk
associated with the importation of sand pears from China was
significant, and we should therefore not authorize such importation.
Similarly, two commenters stated that the proposed conditions for
importation of sand pears from China in the proposed rule did not take
into consideration the unique climate of Florida, which the commenters
asserted is more conducive to the establishment of fruit flies than
that of other States. The commenters pointed out that imported fruit
containing dead fruit fly larvae had been discovered in Florida, and
stated that these detections call into question the efficacy of APHIS'
systems approaches for these pests.
We agree that there are many pests on the pest list for sand pears
from China, and one of these, B. dorsalis, could become established in
Florida, if introduced. However, for the reasons described in the RMD
that accompanied the proposed rule, we have determined that the
measures specified in the proposed rule will effectively mitigate the
risk associated with the importation of sand pears from China into any
area of the United States. The commenters did not provide any evidence
suggesting that the mitigations are not effective.
To that end, we note that the discovery of dead larvae in imported
fruit does not call into question the efficacy of the systems
approaches under which the fruit has been imported. Rather, it suggests
the systems approaches have been effective in neutralizing the larvae.
A commenter asked whether the proposed rule had provisions that
would address the risk that V. nashicola or M. fructigena would follow
the pathway on sand pears from China.
As detailed in the RMD that accompanied the proposed rule, there
are several provisions of the proposed rule that address the risk posed
by phytopathogenic fungi such as V. nashicola and M. fructigena. These
include: Registration of places of production and packinghouses with
the NPPO of China, inspections for quarantine pests at set intervals,
bagging of fruit, safeguarding, labeling, and importation in commercial
consignments.
[[Page 75009]]
One commenter stated that fertility management, that is, the use of
nutrient-rich soil composed primarily of decaying organic matter, has
been demonstrated to be effective in reducing population densities of
certain plant pests on host plants. The commenter suggested that
fertility management be explored as an alternative to the systems
approach of the proposed rule, or, at least, certain provisions of that
approach.
APHIS will continue to monitor the efficacy of this and other
possible mitigation measures for sand pears from China. If we determine
alternate measures to be effective in reducing the risk associated with
the importation of sand pears from China, we may initiate rulemaking to
add them to the regulations.
In the proposed rule, we proposed to require all sand pears
imported into the United States from China to be grown at places of
production that are registered with the NPPO of China. We also proposed
that the NPPO of China would have to inspect registered places of
production prior to harvest for signs of infestations and allow APHIS
to monitor the inspections. Finally, we proposed that, if any of the
pests of quarantine significance likely to follow the pathway on sand
pears from China were detected at a registered place of production, we
could reject individual consignments from that place of production or
prohibit the importation of sand pears from the place of production for
the remainder of the season.
The NPPO of China stated that it had entered into a memorandum of
understanding (MOU) with APHIS regarding inspections of sand pears that
would take place at ports of entry in the United States if the proposed
rule was finalized. The NPPO stated that it was their understanding
that these port-of-entry inspections obviated pre-harvest inspections
of registered places of production. Accordingly, the NPPO asked that we
modify the proposed rule to remove references to such pre-harvest
inspections.
We are making no change in response to this comment. The MOU
referenced by the NPPO pertains to general inspections of imported
fruits and vegetables that APHIS conducts in accordance with Sec.
319.56-3 of the regulations. As specified in the MOU, such inspections
are meant to complement, rather than supplant, the provisions of the
proposed rule, including pre-harvest inspections of registered places
of production. Moreover, we note that such pre-harvest inspections are
necessary not only to prevent infested fruit from being imported to the
United States, but also so that APHIS has assurances that places of
production have implemented and are maintaining all provisions of the
proposed rule that pertain to them, such as bagging of sand pears
destined for export to the United States.
Miscellaneous
In our December 2011 proposed rule, proposed paragraph (f)(1) of
Sec. 319.56-55 contained minimum requirements for the trapping systems
that places of production and packinghouses would need to have in place
for B. dorsalis in order to export sand pears from areas in China south
of the 33rd parallel to the United States. Additionally, proposed
paragraph (f)(4) proposed to require pears from such areas to be
treated in accordance with 7 CFR part 305, which contains our
requirements governing approved treatments of imported commodities.
Since the proposed rule was issued, we have adopted a general
Agency policy of adding minimum trapping requirements to operational
workplans. Among other reasons, this allows us to change the frequency
and distance at which traps must be placed in response to changes in
population densities for B. dorsalis in an exporting region. We have
also begun to add standards for application of treatments to
operational workplans; among other reasons, this allows us to prescribe
in greater detail best practices for the application of various
treatments.
Hence, in this final rule, we are amending paragraph (f)(1) to
specify that the trapping systems must meet the requirements of the
operational workplan, and (f)(3) to specify the treatments must be
applied in accordance with not only 7 CFR part 305 but also the
operational workplan.
In the proposed rule, we proposed to add the conditions governing
the importation of sand pears from China as Sec. 319.56-55. In this
final rule, they are added as Sec. 319.56-57.
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
change discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This final 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.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this rule on small entities. Copies of the full
analysis are available on the Regulations.gov Web site (see footnote 2
in this document for a link to Regulations.gov) or by contacting the
person listed under FOR FURTHER INFORMATION CONTACT.
This rule will amend the regulations to allow, under certain
conditions, the importation into the United States of sand pear from
China. This fruit is produced in the United States in limited
quantities, primarily in Illinois, Virginia, West Virginia, and
Maryland.
Farms producing pears are classified within the North American
Industry Classification System under Other Noncitrus Fruit Farming. The
average 2007 market value of crops sold by farms classified within the
industry Fruit and Tree Nut Farming (which includes Other Noncitrus
Fruit Farming) was less than $188,000, an amount well below the Small
Business Administration's small-entity standard of annual receipts of
not more than $750,000. We infer that the majority of farms producing
pears, including sand pears, are small entities.
China is expecting to export 24,000 metric tons of sand pear
annually to the United States. This amount is less than 5 percent of
average annual production of all varieties of pear produced in the
United States. We do not know the quantity or value of sand pear
produced in the United States, or the quantity or value of sand pear
imported from other countries. Nor do we know the substitutability of
sand pear for other types of pears produced domestically. While the
United States is a net exporter of pears overall, it is likely that the
U.S. supply of sand pear is largely imported. Without information on
the domestic and foreign quantities supplied and the substitutability
of sand pear for other pear varieties, we are unable to evaluate
potential effects of the rule for U.S. producers.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does 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
[[Page 75010]]
Office of Management and Budget (OMB) under OMB control number 0579-
0390.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the EGovernment 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 rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 851-2908.
Lists 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 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. 319.56-57 is added to read as follows:
Sec. 319.56-57 Sand pears from China.
Fresh sand pears (Pyrus pyrifolia) from China may be imported into
the United States from China only under the conditions described in
this section. These conditions are designed to prevent the introduction
of the following quarantine pests: Acrobasis pyrivorella, pear fruit
moth; Alternaria gaisen Nagano, the cause of black spot of sand pear;
Amphitetranychus viennensis (Zacher), Hawthorn spider mite;
Aphanostigma iaksuiense (Kishida), an aphid; Bactrocera dorsalis,
Oriental fruit fly; Caleptrimerus neimongolensis Kuang and Geng, a
mite; Carposina sasakii Matsumora, peach fruit moth; Ceroplastes
japonicus Green, Japanese wax scale; Ceroplastes rubens Maskell, red
wax scale; Conogothes punctiferalis (Guen[eacute]e), yellow peach moth;
Grapholita inopinata, Manchurian fruit moth; Guignardia pyricola (Nose)
W. Yamamoto, a phytopathogenic fungus; Monilinia fructigena Honey in
Whetzel, the cause of brown fruit rot; Phenacoccus pergandei Cockerell,
a mealybug; Planococcus kraunhiae (Kuwana), a mealybug; and Venturia
nashicola Tanaka and Yamamoto, pear scab fungus. The conditions for
importation of all fresh sand pears from China are found in paragraphs
(a) through (e) of this section; additional conditions for sand pears
imported from areas of China south of the 33rd parallel are found in
paragraph (f) of this section.
(a) General requirements. (1) The national plant protection
organization (NPPO) of China must provide an operational workplan to
APHIS that details the activities that the NPPO of China will, subject
to APHIS' approval of the workplan, carry out to meet the requirements
of this section.
(2) The pears must be grown at places of production that are
registered with the NPPO of China.
(3) The pears must be packed for export to the United States in
pest-exclusionary packinghouses that are registered with the NPPO of
China.
(4) Sand pears from China may be imported in commercial
consignments only.
(b) Place of production requirements. (1) All propagative material
entering a registered place of production must be tested and certified
by the NPPO of China as being free of quarantine pests.
(2) The place of production must carry out any phytosanitary
measures specified for the place of production under the operational
workplan.
(3) When any sand pears destined for export to the United States
are still on the tree and are no more than 2.5 centimeters in diameter,
double-layered paper bags must be placed wholly over the pears. The
bags must remain intact and on the pears until the pears arrive at the
packinghouse.
(4) The NPPO of China must visit and inspect registered places of
production prior to harvest for signs of infestations and allow APHIS
to monitor the inspections. The NPPO must provide records of pest
detections and pest detection practices to APHIS, and APHIS must
approve these practices.
(5) If any of the quarantine pests listed in the introductory text
of this section is detected at a registered place of production, APHIS
may reject the consignment or prohibit the importation into the United
States of sand pears from the place of production for the remainder of
the season. The exportation to the United States of sand pears from the
place of production may resume in the next growing season if an
investigation is conducted and APHIS and the NPPO conclude that
appropriate remedial action has been taken.
(c) Packinghouse requirements. (1) During the time registered
packinghouses are in use for packing sand pears for export to the
United States, the packinghouses may only accept sand pears that are
from registered places of production and that are produced in
accordance with the requirements of this section.
(2) Packinghouses must have a tracking system in place to readily
identify all sand pears that enter the packinghouse destined for export
to the United States back to their place of production.
(3) The NPPO of China or officials authorized by the NPPO must
inspect the pears for signs of pest infestation and allow APHIS to
monitor the inspections. If any of the quarantine pests listed in the
introductory text of this section is detected in a consignment at the
packinghouse, APHIS may reject the consignment.
(4) Following the inspection, the packinghouse must follow a
handling procedure for the pears that is mutually agreed upon by APHIS
and the NPPO of China.
(5) The pears must be packed in cartons that are labeled with the
identity of the place of production and the packinghouse.
(6) The cartons must be placed in insect-proof containers, and the
containers sealed. The containers of sand pears must be safeguarded
during transport to the United States in a manner that will prevent
pest infestation.
(d) Shipping requirements. Sealed containers of sand pears destined
for export to the United States must be held in a cold storage facility
while awaiting export.
(e) Phytosanitary certificate. Each consignment of sand pears
imported from China into the United States must be accompanied by a
phytosanitary certificate issued by the NPPO of China with an
additional declaration stating that the requirements of this section
have been met and the consignment has been inspected and found free of
quarantine pests.
(f) Additional conditions for sand pears from areas of China south
of the 33rd parallel. In addition to the conditions in paragraphs (a)
through (e) of this section, sand pears from areas of China south of
the 33rd parallel must meet the following conditions for importation
into the United States:
(1) The place of production of the pears and the packinghouse in
which they are packed must have a trapping system in place for B.
dorsalis. At a minimum, the trapping system must meet the requirements
of the operational work plan.
(2) The place of production or the packinghouse must retain data
regarding the number and location of the traps, as
[[Page 75011]]
well as any pests other than B. dorsalis that have been caught, and
make this information available to APHIS upon request.
(3)(i) The place of production or packinghouse must notify the NPPO
of China, and the NPPO of China must notify APHIS, regarding the
detection of a single B. dorsalis in a place of production,
packinghouse, or surrounding area within 48 hours of the detection.
(ii) If a single B. dorsalis is detected in a registered place of
production, APHIS will prohibit the importation into the United States
of sand pears from the place of production until any mitigation
measures determined by APHIS to be necessary to prevent future
infestations are taken.
(iii) If a single B. dorsalis is detected in a registered
packinghouse, the packinghouse may not be used to pack sand pears for
export to the United States until any mitigation measures determined by
APHIS to be necessary to prevent future infestations are taken.
(4) The pears must be treated in accordance with 7 CFR part 305 and
the operational workplan.
(Approved by the Office of Management and Budget under control
number 0579-0390.)
Done in Washington, DC, this 13th day of December 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-30532 Filed 12-18-12; 8:45 am]
BILLING CODE 3410-34-P