[Federal Register Volume 78, Number 184 (Monday, September 23, 2013)]
[Rules and Regulations]
[Pages 58154-58158]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23044]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2009-0084]
RIN 0579-AD56


Importation of Litchi Fruit From Australia

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations in order to allow, under 
certain conditions, the importation of commercial shipments of litchi 
fruit from Australia into the continental United States, except 
Florida. As a condition of entry, the litchi fruit must be treated with 
irradiation and subject to inspection. If irradiation is applied 
outside the United States, the fruit must be inspected jointly by 
inspectors from the Animal and Plant Health Inspection Service and the 
national plant protection organization (NPPO) of Australia prior to 
departure and accompanied by a phytosanitary certificate issued by the 
NPPO of Australia certifying that the fruit received the required 
irradiation treatment. If irradiation is to be applied upon arrival in 
the United States, the fruit must be inspected by Australian inspectors 
prior to departure and accompanied by a phytosanitary certificate 
issued by the NPPO of Australia. Additionally, the litchi fruit may not 
be imported into or distributed within the State of Florida, due to the 
presence of litchi rust mite in Australia. This action allows for the 
importation of litchi fruit from Australia into the continental United 
States, except Florida, while continuing to provide protection against 
the introduction of quarantine pests.

DATES: Effective Date: October 23, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Dorothy C. Wayson, Regulatory 
Coordination Specialist, PPQ, APHIS, 4700 River Road Unit 141, 
Riverdale, MD 20737-1231; (301) 851-2036.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-60, 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.
    On December 28, 2011, we published in the Federal Register (76 FR 
81401-81404, Docket No. APHIS-2009-0084) a proposal \1\ to amend the 
regulations to allow fresh litchi fruit (Litchi chinensis Sonn.) from 
Australia to be imported into the continental United States, except 
Florida. We proposed that, as a condition of entry, the litchi fruit 
would have to be produced in accordance with a systems approach that 
includes requirements for monitoring and oversight, irradiation 
treatment of the fruit, limited distribution, and shipping.
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0084.
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    We solicited comments concerning our proposal for 60 days ending 
February 27, 2012. We received four comments by that date. They were 
from two students, a representative of a foreign government, and an 
organization of State plant regulatory officials. The comments are 
discussed below by topic.

Pest List

    We prepared a pest risk assessment (PRA) and a risk management 
document for the importation of fresh litchi fruit from Australia. That 
PRA evaluated the risks associated with the importation of litchi fruit 
with up to 5 millimeters of stem into the continental United States 
from Australia. The threshold allowing for a maximum of 5 millimeters 
of stem on the imported litchi fruit was included in Australia's market 
access request and therefore established as the allowable limit in the 
PRA.
    One commenter stated that neither the proposed rule nor the PRA 
provided phytosanitary justification for the inclusion of this 5 
millimeter limit. The commenter further stated that, while the 5 
millimeter stem length was included in Australia's market access 
request, it had been intended only as part of a general description of 
Australia's standard litchi fruit production practices. The commenter 
asked that the limit be removed in light of the fact that

[[Page 58155]]

those pests associated with stems and twigs would either be mitigated 
by the treatments described in the systems approach regardless of stem 
length or were not listed as following the pathway of importation.
    We agree with the commenter and have removed the requirement.
    The PRA identified 15 pests of quarantine significance present in 
Australia that could be introduced into the United States through the 
importation of litchi fruit, including 3 fruit flies, 7 lepidopteran 
pests, 2 scales, 2 other insect pests, and 1 mite.
    Green scale (Coccus viridis) and passionvine mealybug (Planococcus 
minor) were included in the proposed rule and PRA as being two of the 
quarantine pests of litchi subject to mitigation. Subsequent to 
publication of the proposed rule, we established that Coccus viridis 
and Planococcus minor no longer meet our definition of a quarantine 
pest and have added them to our list \2\ of pests that we no longer 
regulate. Therefore, we will not be including Coccus viridis and 
Planococcus minor among the pests to be listed in the additional 
declaration on the phytosanitary certificate. This change has the 
effect of addressing one commenter's recommendation that Planococcus 
minor not be regarded as a pest following the pathway of commercial 
shipments.
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    \2\ This list can be viewed at http://www.aphis.usda.gov/plant_health/plant_pest_info/frsmp/non-reg-pests.shtml.
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    One commenter requested that we intensively monitor litchi fruit 
from Australia at the port of entry for the litchi hairy mite (Aceria 
litchii), which is not eliminated by irradiation.
    Port of entry inspection is among the required phytosanitary 
measures that apply to the importation of litchi fruit from Australia. 
These measures, which also include requirements concerning irradiation, 
commercial shipments, and limited distribution, have been successfully 
applied to shipments of litchis imported from Thailand, where the 
litchi hairy mite is also present. Based on our experience, we are 
confident in the efficacy of the standard level of inspection in 
detecting quarantine pests and preventing their entry into the United 
States.

Proposed Systems Approach

    Based on the risk management document, we determined that measures 
beyond the standard port of arrival inspection are required to mitigate 
the risks posed by the plant pests associated with the importation of 
litchi fruit from Australia. We proposed to allow the importation of 
litchi fruit from Australia into the United States only if they are 
produced in accordance with a systems approach to mitigate pest risk.
    One commenter objected to our use of the term ``systems approach.'' 
The commenter stated that since all pests identified as likely to 
follow the importation pathway are mitigated by the proposed 
irradiation treatment and because no specific in-field management 
measures were stipulated, the combination of measures would not qualify 
as a systems approach. The commenter asked that we remove all 
references to the systems approach from the regulation.
    We are making no change as a result of this comment. We proposed a 
number of requirements that shipments of litchi fruit from Australia 
would have to meet prior to importation. These requirements concerned 
place of production, treatment with irradiation, certificates of 
inspection issued by the national plant protection organization (NPPO) 
of Australia, limited distribution, and limitation to commercial 
consignments only. For the reasons discussed below, we have decided to 
remove the requirement relating to place of production. Contrary to the 
commenter's assertion, the litchi hairy mite is not mitigated by the 
irradiation treatment and therefore necessitates specific inspection. 
In addition, the limited distribution requirement is an additional 
measure beyond the standard port of arrival inspection which is 
required to mitigate the risks posed by the plant pests associated with 
litchis from Australia. Furthermore, the proposed measures meet the 
definition of systems approach as found in International Standards for 
Phytosanitary Measures (ISPM) No. 5: The integration of different risk 
management measures, at least two of which act independently, and which 
cumulatively achieve the appropriate level of protection against 
regulated pests.
    One element of the proposed systems approach was a requirement that 
the litchi fruit be grown in approved places of production that are 
registered with and monitored by the NPPO of Australia.
    One commenter argued that the monitoring requirement should be 
removed, as the proposed systems approach did not include any 
requirements for in-field control measures of the sort that would 
require NPPO oversight. The commenter stated that the other methods of 
control listed as part of the proposed systems approach would be 
sufficient to mitigate risks posed by those pests discussed in the PRA 
and the risk management document.
    We agree with the commenter. Regulatory requirements concerning the 
monitoring of approved places of production are associated the 
application of in-field measures needed to address a specific pest 
risk, which is not the case with the mitigation measures assigned for 
litchi fruit from Australia as detailed in the PRA. Rather, the 
framework equivalency workplan required for irradiated fruits and 
vegetables as described in Sec.  305.9(e)(1)(B) of our phytosanitary 
treatments regulations, stipulates that the U.S. and the exporting 
country's NPPO must establish the type and amount of inspection, 
monitoring, or other activities that will be required in connection 
with allowing the importation of irradiated fruits and vegetables. Such 
workplans include requirements for NPPO-approved places of production 
for the purpose of specific traceability in the event of an unforeseen 
pest situation. This allows for the Animal and Plant Health Inspection 
Service (APHIS) and the NPPO to work collaboratively to address the 
situation in-country without applying unnecessary importation 
restrictions.
    Another element of the proposed systems approach was a requirement 
that the litchi fruit be imported in commercial consignments only. This 
is because commercially produced fruit are already subject to standard 
commercial cultural and post-harvest practices that reduce the risk 
associated with plant pests. Export orchards that are registered 
production sites with traceback capability was cited as one of those 
practices that helps ensure the phytosanitary security of exported 
litchis.
    One commenter requested that we exclude the requirement regarding 
registered production sites with traceback capability. The commenter 
argued that such a stipulation is inconsistent with the requirements of 
previous rules regarding the importation of fruits and vegetables from 
Australia as well as rules regarding the importation of litchi fruit 
from countries other than Australia. The commenter concluded that, from 
a regulatory flexibility standpoint, it would be preferable to include 
any requirement regarding traceability in the framework equivalency 
workplan given that these workplans may be amended more easily to 
reflect any changing conditions within the country that would 
necessitate such tracking.
    We agree with the commenter's point and have removed references to 
the

[[Page 58156]]

requirement that orchards be registered with and monitored by the NPPO 
of Australia in this final rule. We also agree that any such 
requirements are more appropriately located in the framework 
equivalency workplan where, as with the conditions concerning 
monitoring requirements discussed previously, they would provide for 
specific traceability in the event of an unforeseen pest situation.
    Another element of the proposed systems approach was a requirement 
that litchi fruit be treated with a minimum absorbed irradiation dose 
of 400 gray in accordance with the provisions of Sec.  305.9 and the 
Plant Protection and Quarantine Treatment Manual. This is the 
established generic dose for all insect pests, except pupae and adults 
of the order Lepidoptera. While the preamble text in the proposed rule 
specified that such treatment could be conducted at an approved 
facility in Australia or in the United States, the proposed regulatory 
text stated that treatment would have to be conducted prior to 
importation of the fruits into the United States.
    The commenter asked that the requirement for the fruit to be 
treated prior to importation into the United States be removed.
    We agree with the commenter and have changed the requirement 
accordingly. If irradiation is applied outside the United States, the 
fruits must be inspected jointly by inspectors from APHIS and the NPPO 
of Australia prior to departure and accompanied by a phytosanitary 
certificate issued by the NPPO of Australia certifying that the fruit 
received the required irradiation treatment. If irradiation is to be 
applied upon arrival in the United States, the fruits must be inspected 
by Australian inspectors prior to departure and accompanied by a 
phytosanitary certificate issued by the NPPO of Australia.
    In addition to altering the requirement associated with the 
location of the irradiation treatment, we are also removing the 
stipulation that this information be contained in an additional 
declaration, as an additional declaration is not used for certifying 
application of a treatment or details of a treatment. Instead, if 
irradiation is applied outside the United States, the fruits must be 
inspected jointly by inspectors from APHIS and the NPPO of Australia 
prior to departure and accompanied by a phytosanitary certificate 
issued by the NPPO of Australia certifying that the fruit received the 
required irradiation treatment. We included the requirement concerning 
the additional declaration regarding treatment information in error in 
the proposed rule. Certification of irradiation treatment will provide 
sufficient phytosanitary protection.
    Because the litchi hairy mite is not present in Florida and because 
we have consistently prohibited host movement into Florida from areas 
where that pest is present, another aspect of the proposed systems 
approach was to prohibit the importation and distribution of litchi 
from Australia into the State of Florida by requiring that all cartons 
of litchi be stamped ``Not for distribution in FL.''
    One commenter stated that we should also restrict importation of 
litchi fruit into the State of California given that Florida and 
California have similar climates that allow for the establishment and 
survival of the litchi hairy mite. Another commenter stated that 
commercial litchi production is an emerging field in California and 
those small- and medium-scale agricultural producers and family farms 
in particular would be helped by the exclusion of Australian litchi 
fruit from California.
    We are making no change as a result of these comments. Unlike the 
more humid climate found in Florida, the dry Mediterranean climate in 
California is not conducive for the survival of the litchi hairy mite. 
Additionally, the occurrence of seasonal cold snaps and high winds in 
California causes flower loss and, consequently, poor fruit set. The 
litchi tree needs a truly tropical climate to produce much fruit. 
Further, production levels of litchi in California are low. We 
therefore believe that the improbability of mite survival and the small 
number of hosts available in California are sufficient to mitigate the 
risk posed by litchi hairy mite. Finally, regarding the second 
commenter's point, APHIS does not have the authority to prohibit 
commodities for importation solely based on potential economic impact. 
The determining factor must be scientifically established pest risk.

Pest Risk Analysis

    The Asian ambrosia beetle (Euwallacea fornicatus) was listed in the 
PRA as being a pest of litchi present in Australia that is also present 
in Hawaii. We determined that Euwallacea fornicatus was not likely to 
follow the importation pathway and therefore did not address it further 
via mitigations. One commenter stated that we should remove Euwallacea 
fornicatus from the list of quarantine pests in the PRA because the 
pest is also present in Florida and California in addition to Hawaii.
    The commenter is correct regarding the distribution of Euwallacea 
fornicatus within California, Florida, and Hawaii. However, while the 
beetle is present in California and Florida based on more recent 
references than those cited in the PRA, it is also currently listed as 
reportable in a domestic context and is currently being assessed by the 
United States Department of Agriculture's New Pest Advisory Group. 
Euwallacea fornicatus, therefore, meets our standards regarding 
quarantine pests. For that reason, we are making no changes as a result 
of this comment.

Economic Analysis

    We analyzed the potential economic effects of the importation of 
litchi fruit from Australia on small entities and concluded that any 
litchi price declines that might result from this rule would be 
insignificant, especially if, as is likely, at least some litchi fruit 
imports from Australia were to displace imports from other countries. 
Additionally, we stated that, given that the agricultural seasons in 
the Southern Hemisphere are generally the opposite of those in the 
Northern Hemisphere, the proposed imports from Australia likely would 
not directly compete with U.S. litchi fruit production. As a result, we 
determined that the importation of litchi fruit from Australia would 
not have a significant economic impact on a substantial number of small 
entities.
    One commenter stated other agencies such as the United Nations Food 
and Agriculture Organization do not distinguish between fresh and 
processed fruit, while the U.S. Harmonized Tariff System group litchi 
fruit with other exotic fruits into a single category. The commenter 
further stated that the analysis performed by APHIS to determine the 
economic effects of the proposed rule on small entities uses data from 
2004 and earlier in order to reach its conclusions. The commenter 
concluded that it is important to base any economic analysis on current 
data that is segregated specifically by fruit type in order to best 
inform the decisionmaking process.
    We are making no changes as a result of this comment. The commenter 
rightly observes that the United Nations Food and Agriculture 
Organization and the U.S. Harmonized Tariff System do not separate 
shipment data concerning fresh litchis in particular, however we did 
not use data from either of these sources in order to conduct our 
economic analysis. The most recent sources of information specifically 
regarding fresh litchis are from the Proceedings of the Florida

[[Page 58157]]

State Horticultural Society, 118,\3\ and a paper entitled ``Is It Still 
Profitable to Grow Lychee in Florida?,'' which was released by the Food 
and Resource Economics Department, Florida Cooperative Extension 
Service, Institute of Food and Agricultural Sciences, University of 
Florida, and may be found on the Internet at http://edis.ifas.ufl.edu/fe496. These papers are dated 2005 and 2004, respectively. They 
represent the most recent, targeted economic information available on 
the subject of the importation of litchi fruit and the domestic market.
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    \3\ Copies of the proceedings are available from the person 
listed under FOR FURTHER INFORMATION CONTACT.
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    The commenter also said that the two main factors that affect the 
profitability of litchi farmers in the United States are product yield 
and market price. The commenter referenced an analysis conducted by the 
University of Florida, Department of Food and Resource Economics, which 
concluded that net returns are very sensitive to even small market 
price fluctuations, even more than a similar increase or decrease in 
yield.
    We are making no changes as a result of this comment. The quantity 
of litchi fruit that Australia proposes to export to the United States 
(400 metric tons) represents 2.7 percent of total U.S. imports. This 
relatively small quantity is unlikely to cause market fluctuations.
    The commenter agreed that the importation of litchi fruit from 
Australia alone is not likely to have a major effect on the price of 
litchi sold in the United States due to the small quantity and the 
differing harvest periods in the Northern and Southern Hemispheres. 
However, the commenter also stated that litchi fruit imported from 
Australia, when considered in conjunction with litchi fruit imported 
from countries such as Thailand, Vietnam, and South Africa, may 
contribute to the declining price of litchi fruit overall. The 
commenter stated that APHIS should take into account projected import 
levels of litchi fruit from all countries, rather than considering such 
importations on country-by-country basis.
    We are making no changes as a result of this comment. APHIS 
evaluates commodity import requests on a case-by-case basis. 
Accordingly, the economic analysis considers total imports levels from 
those countries that currently export to the United States in 
conjunction with the projected level of imports from the requesting 
country. Prior to the publication of this rule, we allowed for the 
importation of litchi fruit from China, India, Taiwan, and Thailand, 
and therefore based our assessment of the potential economic impact of 
the rule on imports from those countries. In the event that other 
countries, such as Vietnam or South Africa, submit requests for market 
access for litchi fruit, we will evaluate the economic impacts of 
imports from those countries. We do not consider the potential economic 
impact of exports of commodities from countries that have not submitted 
market access requests to us.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This 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 the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
on the Regulations.gov Web site (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    World production of litchi is estimated to be 2.2 million metric 
tons (MT), with China accounting for over 50 percent (1.2 million MT), 
and one-third produced by India (0.7 million MT). The United States 
produces approximately 500 MT per year, which represents less than 0.03 
percent of world production. U.S. litchi production is concentrated in 
the States of Florida, Hawaii, and California. Florida has the largest 
area under production (1,200 acres), followed by Hawaii (300 acres) and 
California (60 acres). Currently, Australia produces 3,500 MT of 
litchis. Australia expects to export approximately 20 forty-foot 
containers of litchis per year to the United States, which is 
equivalent to about 400 MT.
    In 2004, the United States imported a total of 14,854 MT of 
litchis, mainly from China, Taiwan, and Mexico. Australia's proposed 
export quantity represents about 2.7 percent of U.S. imports in 2004.
    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 litchi fruit to be imported into the 
continental United States from Australia. State and local laws and 
regulations regarding litchi fruit imported under this rule will be 
preempted while the fruit is in foreign commerce. Fresh fruits and 
vegetables are generally imported for immediate distribution and sale 
to the consuming public, and remain in foreign commerce until sold to 
the ultimate consumer. The question of when foreign commerce ceases in 
other cases must be addressed on a case-by-case basis. No retroactive 
effect will be given to this rule, and this rule will not require 
administrative proceedings before parties may file suit in court 
challenging this rule.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule, which were 
filed under 0579-0386, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.

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 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 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 and 7701-7772, and 7781-7786; 21 U.S.C. 
136 and 136a; 7 CFR 2.22, 2.80, and 371.3.


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0
2. A new Sec.  319.56-61 is added to read as follows:


Sec.  319.56-61  Litchi from Australia.

    Litchi (Litchi chinensis) may be imported into the continental 
United States from Australia only under the following conditions and in 
accordance with all other applicable provisions of this subpart:
    (a) The litchi must be treated for plant pests of the class 
Insecta, except pupae and adults of the order Lepidoptera, with 
irradiation in accordance with Sec.  305.9 of this chapter. Treatment 
may be conducted either prior to or upon arrival of the fruits into the 
United States.
    (b) Each shipment of litchi must be accompanied by a phytosanitary 
certificate of inspection issued by the NPPO of Australia. For those 
shipments of litchi treated in Australia, the phytosanitary certificate 
must certify that the fruit received the required irradiation treatment 
prior to shipment. For those shipments of litchi treated upon arrival 
in the United States, the fruits must be inspected by Australian 
inspectors prior to departure and accompanied by a phytosanitary 
certificate.
    (c) In addition to meeting the labeling requirements in part 305 of 
this chapter, cartons in which litchi are packed must be stamped ``Not 
for importation into or distribution in FL.''
    (d) The litchi may be imported in commercial consignments only.

(Approved by the Office of Management and Budget under control 
number 0579-0386)

    Done in Washington, DC, this 17th day of September 2013.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-23044 Filed 9-20-13; 8:45 am]
BILLING CODE 3410-34-P