2011-18851. 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:

Final rule.

SUMMARY:

We are amending 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 will have to be produced in accordance with a systems approach that will 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 will 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 regulations. This action will 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:

Effective Date: July 26, 2011.

FOR FURTHER INFORMATION CONTACT:

Ms. Dorothy Wayson, Regulatory Coordination Specialist, PPQ, APHIS, 4700 River Road, Unit 39, Riverdale, MD 20737-1231; [phone].

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. Prior to the publication of this final rule, shepherd's purse without roots has been authorized for entry into the United States from the Republic of Korea.

On October 12, 2010, we published in the Federal Register (75 FR 62484-62486, Docket No. APHIS-2009-0086) a proposed rule ^[1] 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. 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. 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 quarantined areas. To recommend specific measures to mitigate those risks, we prepared a risk management document (RMD).

We solicited comments concerning the PRA and RMD for 60 days ending December 13, 2010. We received two comments by that date. They were from a private citizen and a State division of consumer services. Both comments were in general agreement with the proposed action; however, there were suggestions made regarding inspections.

One commenter suggested that in addition to being inspected for pests, that the shepherd's purse with roots be inspected for pesticide and herbicide residue.

While the United States does not have direct control over pesticides that are used on plant commodities such as shepherd's purse with roots in other countries, there are regulations in the United States concerning the importation of food to ensure that commodities do not enter the United States containing illegal pesticide residues. Through section 408 of the Federal Food, Drug, and Cosmetic Act, the Environmental Protection Agency (EPA) has the authority to establish, change, or cancel tolerances for food commodities. These tolerances are the maximum levels of pesticide residues that have been determined, through comprehensive safety evaluations, to be safe for human consumption. Tolerances apply to both food commodities that are grown in the United States and food commodities that are grown in other countries and imported into the United States. While EPA has no authority in a foreign country, the tolerance levels are enforced once the commodity enters the United States. Federal Government food inspectors are responsible for monitoring food commodities that enter the United States to confirm that tolerance levels are not exceeded and that residues of pesticide chemicals that are banned in the United States are not present on the commodities. Tolerance levels for all chemicals that are acceptable for use on shepherd's purse may be found in EPA's regulations in 40 CFR 180.101 through 180.2020. Tolerance information can also be obtained at http://www.epa.gov/​pesticides/​regulating/​index.htm.

One commenter stated that the pest risk assessment failed to mention any safeguarding measures against endoparasitic nematodes such as new races of the soybean cyst nematode (Heterodera glycines), rice root nematodes (Hirschmanniella imamuri), root knot nematode (Meloidogyne spp.), and lesion nematodes (Pratylenchus thornei and other unidentified Pratylenchus species).

We can only require safeguarding measures against organisms that are not known to be present in the United States and that we have determined present a risk to U.S. plants or plant products. Therefore, because H. glycines and P. thornei are already established in many parts of the United States, additional safeguarding measures are not required. Furthermore, we found no information about exotic races of H. glycines and P. thornei that occur in the Republic of Korea and are reported on shepherd's purse. If new information becomes available about particular Heterodera spp. and Pratylenchus spp., we will reevaluate the risks associated with this commodity and assign any new mitigation measures that we determine are necessary.

H. imamuri is not reported in the United States, but has been reported in certain areas of the Republic of Korea; however, we have no evidence that it is associated with shepherd's purse. By necessity, pest assessments focus on those organisms for which biological information is available. If new information becomes available about particular Meloidogyne spp. or other nematode pests that occur in the Republic of Korea and are associated with shepherd's purse, we will reevaluate the risks associated with this commodity and assign any new mitigation measures that we determine are necessary.

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 necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. The shipping season for shepherd's purse from the Republic of Korea is in progress. Making this rule effective immediately will allow interested producers and others in the marketing chain to benefit during this year's shipping season. 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 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.

APHIS has determined that fresh shepherd's purse with roots can be safely imported from Korea into the United States under certain conditions. U.S. entities that could be affected by the final rule are domestic producers of shepherd's purse, and wholesalers that import fresh shepherd's purse. Based on our review of available information, APHIS does not expect the rule to have a significant economic impact on small entities. In the absence of significant economic impacts, we have not identified alternatives that would minimize such impacts.

Executive Order 12988

This final rule allows shepherd's purse with roots to be imported into the United States from the Republic of Korea. State and local laws and regulations regarding shepherd's purse with roots imported under this rule will be preempted while the plant is in foreign commerce. Fresh plant products are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0366.

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 [phone].

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

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 § 319.56-51 is added to read as follows:

§ 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.

(Approved by the Office of Management and Budget under control number 0579-0366)

Done in Washington, DC this 20th day of July 2011.

Kevin Shea,

Acting Administrator, Animal and Plant Health Inspection Service.

Footnotes

1.  To view the proposed rule, PRA, RMD, and the comments we received, go to http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS-2009-0086.