[Federal Register: June 10, 2003 (Volume 68, Number 111)]
[Rules and Regulations]
[Page 34517-34519]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn03-1]
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Rules and Regulations
Federal Register
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[[Page 34517]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 02-084-2]
Removal of Cold Treatment Requirement for Ya Pears Imported From
Hebei Province in China
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are removing the cold treatment requirement for Ya pears
imported from Hebei Province in the People's Republic of China. The
cold treatment requirement had been imposed to ensure that Ya pears did
not introduce the Oriental fruit fly into the United States. The
People's Republic of China has submitted data indicating that no
Oriental fruit flies have been found in Hebei Province since the
beginning of 1997 and has requested that we remove the cold treatment
requirement. This action will remove a restriction that no longer
appears necessary.
EFFECTIVE DATE: June 10, 2003.
FOR FURTHER INFORMATION CONTACT: Dr. Inder P. Gadh, Import Specialist,
Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road, Unit
140, Riverdale, MD 20737-1236; (301) 734-6799.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56
through 319.56-8, 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
spread of plant pests that are new to or not widely distributed within
the United States.
On December 20, 2002, we published in the Federal Register (67 FR
77940-77942, Docket No. 02-084-1) a proposal to amend the regulations
in Sec. 319.56-2ee by removing the requirement that Ya pears imported
from Hebei Province in the People's Republic of China be cold treated
for Oriental fruit fly. We proposed to remove this requirement because
fruit fly trapping data submitted in March 2000 by the People's
Republic of China showed no occurrence of Oriental fruit fly in Hebei
Province for 1997 through 1999. Further data have continued to indicate
that Oriental fruit fly is not present in Hebei Province. In addition,
the cool climate of Hebei Province, which is comparable to that of
Pennsylvania in the United States, does not favor the development of
Oriental fruit fly. We proposed to leave the other safeguards required
by Sec. 319.56-2ee for Ya pears from Hebei Province in place, as they
help to prevent against the introduction of other plant pests.
We solicited comments concerning our proposal for 60 days ending
February 18, 2003. We received four comments by that date. They were
from a private citizen, an industry advocacy group, and representatives
of State and foreign governments. The issues raised by the commenters
are discussed below.
One commenter opposed the proposed rule on the grounds that it
would increase the risk of a fruit fly outbreak in the United States,
with potentially devastating effects for U.S. agriculture.
When the Animal and Plant Health Inspection Service (APHIS)
originally allowed the importation of Ya pears from China, we required
that the pears be cold treated because we had no information indicating
that Oriental fruit fly was not present in Hebei and Shandong
Provinces. As stated above, we now have data submitted by the People's
Republic of China that indicates that Oriental fruit fly is not present
in Hebei Province; in addition, climatic conditions there do not favor
its establishment. (Note: In the proposed rule and in the regulations
in Sec. 319.56-2ee, we incorrectly refer to Shandong Province as
``Shadong Province.'' This rule corrects that error in the regulations,
and we refer to the province by its correct name throughout this
document.)
In order to require cold treatment for Ya pears imported into the
United States from Hebei Province, we would have to have scientific
evidence indicating that Oriental fruit fly is present in Hebei
Province and that importing Ya pears from Hebei Province would pose a
risk of introducing Oriental fruit fly into the United States. The
available scientific evidence, to the contrary, indicates that the cold
treatment requirement for Ya pears imported from the Hebei Province in
China is no longer necessary. We cannot require treatment based on a
purely theoretical risk of pest introduction. Therefore, we are
removing the requirement that Ya pears imported into the United States
from Hebei Province be cold treated, and we are making no changes in
response to this comment.
One commenter supported the proposed rule on the condition that the
People's Republic of China maintain an Oriental fruit fly detection
program in Hebei Province and submit annual reports to APHIS affirming
that fruit fly continues not to be present in Hebei Province.
Furthermore, this commenter asserted, if Oriental fruit fly is ever
detected in Hebei Province, APHIS should immediately reinstate the cold
treatment requirement.
The People's Republic of China will continue trapping and surveying
for Oriental fruit fly and for other fruit flies and quarantine pests
in Hebei Province after this final rule becomes effective. We will not,
however, require that China submit the trapping and surveying data to
us. Climatic conditions do not favor the establishment of Oriental
fruit fly in Hebei Province, and we have no reason to suspect that
Oriental fruit fly will become established there. Nevertheless, if
trapping data were to indicate in the future that a quarantine pest
such as Oriental fruit fly is present in Hebei Province, the national
plant protection organization of China would notify APHIS immediately,
fulfilling its obligation to do so under trade agreements for
agricultural products. Thus, any requirement that the People's Republic
of China continue submitting trapping data would, in practice, only
mandate repeated submissions of negative data. Since we already have
data sufficient to prove that Oriental fruit fly does not exist in
Hebei Province, we do not believe further submissions of negative data
are necessary.
[[Page 34518]]
In the event that Oriental fruit fly is detected in Hebei Province
after this final rule becomes effective, we would take any and all
appropriate actions to ensure that this plant pest is not introduced
into the United States. Such actions may include, but may not be
limited to, the reinstatement of the cold treatment requirement for Ya
pears imported from Hebei Province.
One commenter questioned the reliability of the fruit fly trapping
data submitted to us by the People's Republic of China. We have
examined the data and believe it to be accurate. In the proposed rule,
we invited persons interested in reviewing the data to contact the
person listed under FOR FURTHER INFORMATION CONTACT. We received no
comments asserting that any specific aspects of the data appeared
unreliable. We are making no changes in response to this comment.
One commenter argued that the recent rise in the quantity of
imports of Ya pears from China and the decrease in the price of the
imports, as described in the economic analysis in the proposed rule,
showed that the cold treatment requirement was not significantly
hampering the ability of Chinese producers to export Ya pears to the
United States. The commenter also took issue with the statement in the
economic analysis that Ya pears are not a substitute for domestically
produced pears, on the grounds that all produce items compete for a
share of the food dollar of U.S. consumers. This commenter stated that
until restrictions on the export of U.S. pears to China are lifted by
the Government of the People's Republic of China, APHIS restrictions on
the importation of pears from China should remain in place. Another
commenter opposed removing the cold treatment requirement on the
grounds that the cost of complying with the cold treatment requirement
was not particularly onerous.
Cold treatment was required for Ya pears from Hebei Province in
China because we had no information indicating that Oriental fruit fly
was not present in Hebei Province. Data made available by the People's
Republic of China indicate that the Oriental fruit fly is not present
in Hebei Province; therefore, this requirement appears to be
unnecessary. The purpose of treating imported fruits and vegetables is
to mitigate pest risk, not to impose economic barriers on the
importation of fruits and vegetables; APHIS has no authority to
regulate based on purely economic considerations. We are making no
changes in response to these comments.
One commenter supported the proposed rule but argued that we should
additionally remove the cold treatment requirement from Ya pears
imported from Shandong Province in China. We will consider removing
this requirement if the People's Republic of China provides APHIS with
data similar to the data submitted for Hebei Province indicating that
Oriental fruit fly is not present in Shandong Province. In addition,
removing the cold treatment requirement from Ya pears imported from
Shandong Province is beyond the scope of the present rulemaking. We are
making no changes in response to this comment.
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.
Effective Date
This is a substantive rule that relieves restrictions and, pursuant
to the provisions of 5 U.S.C. 553, may be made effective less than 30
days after publication in the Federal Register. Immediate
implementation of this rule is warranted to remove a cold treatment
requirement for Ya pears imported from Hebei Province in the People's
Republic of China that is no longer necessary. Therefore, the
Administrator of the Animal and Plant Health Inspection Service has
determined that this rule should be effective upon publication in the
Federal Register.
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.
This rule removes the cold treatment requirement for Ya pears
imported from Hebei Province in the People's Republic of China. This
action is based on data from the national plant protection organization
of the People's Republic of China indicating that Oriental fruit fly
does not occur in Hebei Province and the fact that climatic conditions
do not favor the establishment of Oriental fruit fly in Hebei Province.
The rapid growth in Ya pear imports by the United States from China
is evident in table 1. Imports increased from about 329,000 kilograms
in 1998 to over 6.57 million kilograms in 2001. The estimated cost
savings discussed in this analysis are based on the import quantity and
value for 2001.
Table 1.--Ya Variety Pear Imports From China
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Value Price
Quantity (millions of (dollars per
(kilograms) dollars) kilogram)
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1998............................................................ 328,818 $0.328 $1.00
1999............................................................ 2,097,863 2.011 0.96
2000............................................................ 5,264,099 3.746 0.71
2001............................................................ 6,573,113 3.559 0.54
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Source: World Trade Atlas, based on data from the U.S. Bureau of the Census. Harmonized Tariff Schedule code
080820.
We expect that removing the cold treatment requirement for Ya pears
imported from Hebei Province will reduce shipping costs. The magnitude
of the reduction will depend on transport costs with and without the
cold treatment requirement. While refrigeration costs will still be
borne by importers in the absence of the cold treatment requirement,
the costs required to maintain, monitor, and report cold treatment
temperatures during transport will all be saved.
The cold treatment schedule for Ya pears from China, as specified
in the Plant Protection and Quarantine Treatment Manual, is T107-F. The
number of days required for cold treatment en route under the
schedule--10 to 14 days, depending on the treatment temperature--is
less than the number of days it takes to ship Ya pears to the United
States from China. No reduction in shipping time, and thus no
associated cost savings, is expected to result from the removal of the
cold treatment requirement.
A recent analysis of cold treatment requirements for the
Mediterranean fruit fly at U.S. ports, used here as a proxy
[[Page 34519]]
for cold treatment costs en route, indicated a cost of 50 cents per day
per pallet.\1\ Most of this expense is the cost of refrigeration. Under
this rule, Ya pears from Hebei Province will still be refrigerated
while en route to the United States, although not to cold treatment
specifications. For this analysis, it is assumed that the savings from
not having to meet cold treatment requirements would be 25 cents per
day per pallet. This amount probably exceeds the actual savings that
will be realized, providing an upper-bound approximation of potential
effects.
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\1\ Analysis for APHIS Docket 02-071-1, published in the Federal
Register on October 15, 2002 (67 FR 63529-63536).
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Assuming that boxing and pallet loading capacities are similar to
those of domestic pears, a box of Ya pears would contain about 20
kilograms and a pallet would contain 49 boxes.\2\ Assuming further a
14-day cold treatment period, the longest specified in the cold
treatment regimen, the cost of cold treatment will be about 36 cents
per 100 kilograms, or 0.36 cents per kilogram.\3\ As shown in table 1,
the average price of Ya pears has steadily fallen since imports began
in 1998. Even so, estimated savings from not having to meet cold
treatment requirements represent less than 1 percent of the 2001 price
of 54 cents per kilogram. In addition, pears from Shandong Province
will be unaffected by the proposed change, further dampening the total
cost effect in the United States.
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\2\ The packing measure used for pears is four-fifths of a
bushel, which corresponds to about 42 to 45 pounds. (Kevin Moffett,
Pear Bureau, personal communication).
\3\ (Twenty-five cents per day per pallet) x (14 days per
treatment) = $3.50 per pallet per treatment. (Twenty kilograms per
box) x (49 boxes per pallet) = 980 kilograms per pallet. ($3.50) /
(980 kilograms) = $0.00357/kg.
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Ya pears are not produced in the United States, and Ya pears are
not a substitute for domestically produced pears. Thus, this rule is
not expected to affect the U.S. domestic pear industry.
Economic Effects on Small Entities
Under the criteria established by the Small Business
Administration, fruit importers (North American Industry Classification
System code 422480, ``Fresh Fruit and Vegetable Wholesalers'') must
have 100 or fewer employees to be considered small entities. At least
some U.S. importers of Ya pears from Hebei Province in China may be
small entities, but the expected economic effect of no longer needing
to meet cold treatment requirements is minor.
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 proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, 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, 7711-7714, 7718, 7731, 7732, 7751-7754,
and 7760; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
0
2. Section 319.56-2ee is amended as follows:
0
a. In paragraph (a)(1), by removing the word ``Shadong'' and adding the
word ``Shandong'' in its place.
0
b. By revising paragraphs (b) and (c) to read as set forth below.
Sec. 319.56-2ee Administrative instructions: Conditions governing the
entry of Ya variety pears from China.
* * * * *
(b) Treatment. Pears from Shandong Province must be cold treated
for Bactrocera dorsalis in accordance with the Plant Protection and
Quarantine Treatment Manual, which is incorporated by reference at
Sec. 300.1 of this chapter.
(c) Each shipment of pears must be accompanied by a phytosanitary
certificate issued by the Chinese Ministry of Agriculture stating that
the conditions of this section have been met.
Done in Washington, DC, this 5th day of June, 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-14551 Filed 6-9-03; 8:45 am]
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