Importation of Fruit Trees From France

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 94-102-3]

Importation of Fruit Trees From France

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are allowing Chaenomeles spp., Cydonia spp., Malus spp.,

Pyrus spp., and certain Prunus spp. plants (except seeds) to be

imported into the United States as restricted articles, if grown in

private nurseries in France and certified by the French plant

protection service to be free of various diseases. This action relieves

restrictions on the importation of these articles from France without

presenting a significant risk of introducing plant pests (including

diseases) into the United States.

We are also removing Laredo, TX, from the list of ports equipped

with plant inspection stations.

EFFECTIVE DATE: October 31, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. James Petit de Mange or Mr. Peter

Grosser, Operations Officers, Port Operations, PPQ, APHIS, 4700 River

Road Unit 139, Riverdale, MD, 20737-1236, (301) 734-8645.

SUPPLEMENTARY INFORMATION:

Background

The Plant Quarantine Act (7 U.S.C. 151 et seq.) and the Federal

Plant Pest Act (7 U.S.C. 150aa et seq.) authorize the Animal and Plant

Health Inspection Service (APHIS) to prohibit or restrict the

importation into the United States of any plants, roots, bulbs, seeds,

or other plant products in order to prevent the introduction of plant

pests (including diseases) into the United States.

Regulations promulgated under this authority, among others, include

7 CFR 319.37 through 319.37-14, ``Subpart--Nursery Stock, Plants,

Roots, Bulbs, Seeds, and Other Plant Products'' (referred to below as

the regulations). These regulations govern the importation of living

plants, plant parts, and seeds for or capable of propagation, and

related articles. The regulations prohibit or restrict the importation

of most plants, roots, bulbs, seeds, and other plant products. These

articles are classified as either ``prohibited articles'' or

``restricted articles.''

A prohibited article is an article that the Deputy Administrator

for Plant Protection and Quarantine (PPQ), APHIS, has determined cannot

feasibly be inspected, treated, or handled to prevent it from

introducing plant pests new to or not widely prevalent or distributed

within and throughout the United States. Prohibited articles may not be

imported into the United States, unless imported by the United States

Department of Agriculture (USDA) for experimental or scientific

purposes under specified safeguards.

A restricted article is an article that the Deputy Administrator

for PPQ has determined can be inspected, treated, or handled to

essentially eliminate the risk of its spreading plant pests if imported

into the United States. Restricted articles may be imported into the

United States if they are imported in compliance with restrictions that

may include permit and phytosanitary certificate requirements,

inspection, treatment, or postentry quarantine.

On March 13, 1995, we published in the Federal Register (60 FR

13382-13384, Docket No. 94-102-1) a proposed rule to amend Sec. 319.37-

5(b) of the regulations to allow Chaenomeles spp., Cydonia spp., Malus

spp., Pyrus spp., and certain Prunus spp. grown in private nurseries in

France to be imported into the United States as restricted articles

under the same conditions specified in the regulations for those same

articles when grown in government nurseries in France. All of these

restricted articles must be accompanied by a phytosanitary certificate

of inspection stating where the article was grown and certifying that

the article was found by the plant protection service of the country in

which it was grown to be free of various plant diseases. Also, all of

the restricted articles listed above are subject to a 2-year postentry

quarantine period, as specified in Sec. 319.37-7. In postentry

quarantine, restricted articles are grown in an approved area and

observed in order to detect plant pests undetectable by inspection at

the port of entry. In addition, we proposed to amend Sec. 319.37-14(b)

of the regulations by removing the port of Laredo, TX, from the list of

ports with plant inspection stations.

We solicited comments concerning our proposal for 30 days ending

April 12, 1995. On April 26, 1995, we published a notice (60 FR 20436,

Docket No. 94-102-2) reopening and extending the comment period until

May 26, 1995. We received a total of four comments on or before May 26.

They were from producers, industry representatives, and representatives

of State governments. These comments are discussed below.

One commenter expressed concerns about the risks associated with

allowing the importation of fruit trees from private nurseries in

France. The commenter cited Canada's decision to stop importing

grapevines from France due to pest interceptions. The commenter

suggested random sampling of imported fruit trees to assure compliance

with disease-free certification requirements in Sec. 319.37-5 of the

regulations.

We are aware of the problems that Canada encountered with

grapevines from France. We understand that those problems have been

resolved. Canada now allows the importation of grapevines from France

under certain restrictions. Canadian officials detected these problems

through routine tests of the imported materials. As described below,

APHIS performs routine tests of fruit trees imported into the United

States in addition to the requirements for inspections at the port of

entry and postentry quarantine.

All of the safeguards that are currently in the regulations for

Chaenomeles, Cydonia, Malus, Prunus, and Pyrus spp. imported into the

United States from government nurseries in France will also apply to

fruit trees imported into the United States from private nurseries in

France. Fruit trees must be imported through an APHIS plant inspection

station where they will be inspected for plant pests. If the imported

fruit trees are free from such plant pests, samples will be taken and

sent to the National Plant Germplasm Quarantine Center (NPGQC) at

Beltsville, MD. NPGQC tests the fruit trees for viruses and other

submicroscopic pathogens. The balance of the fruit tree shipment is

grown under postentry quarantine for two growing seasons at an approved

postentry quarantine growing site. The plants are inspected during that

period by State plant regulatory officials. These postentry quarantine

processes are contained in Sec. 319.37-7 and have successfully

protected the United States against the introduction of plant pests

while allowing the entry of valuable fruit varieties.

We believe that these safeguards are adequate to prevent the

introduction of plant pests into the United States on fruit trees

imported from private nurseries in France. Therefore, we are making no

changes based on this comment.

One commenter was concerned about the manageability of the

postentry quarantine inspections and suggested that we limit the volume

of imported fruit trees to that which is needed for propagation

purposes, not ``instant orchards.''

[[Page 51209]]

The import permits for plants to be grown in postentry quarantine

do not limit the number of plants that may be imported into the United

States. However, the regulations in Sec. 319.37-7 require that each

participating State review pending permit applications for articles to

be grown under postentry quarantine conditions in the State and report

to APHIS whether the site is of adequate size to contain the number of

plants proposed for importation.

As specified in the regulations in Sec. 319.37-7, APHIS issues

permits only after determining that State services are available to

monitor the postentry quarantine. Therefore, APHIS may withhold

approval of a permit application if the applicant indicates the intent

to import quantities of postentry plants that the State does not have

the resources to inspect, or that exceed an amount that the State

believes could be grown at the proposed site. Therefore, APHIS has the

ability under Sec. 319.37-7 of the regulations to prevent the

importation of an ``instant orchard'' by denying approval of a permit

if such actions are justifiable. Therefore, we are making no changes

based on this comment.

One commenter expressed concern about the importation of certain of

the Prunus species (cherry trees) due to a new strain of the plum pox

virus that has been detected in cherry trees in Russia and eastern

Europe. Prior to this detection, cherry trees had been considered

resistant to the plum pox virus.

APHIS is aware of the reports that a new strain of the plum pox

virus was detected in cherry trees in Bulgaria, Moldova, and Russia.

APHIS is closely watching any developments of this strain of plum pox.

At this time, there has been no report of this strain of plum pox being

detected in France or the other European countries from which cherry

trees currently may be imported into the United States.

Plum pox is also a disease of quarantine importance to France and

the other European countries from which cherry trees may be imported

into the United States. Fruit tree certification programs in France and

other European countries include serological testing of cherry trees

that would detect plum pox if it were present. Additionally, plants of

the Prunus species imported into France and other European countries

are held and tested at quarantine stations. These measures prevent

disease from coming into France and other European countries from which

cherry trees may be imported into the United States. Also, the tests

that APHIS performs for all fruit trees imported into the United States

from Europe would detect plum pox if any trees were infected. These

precautions, and a 2-year postentry quarantine, provide adequate

safeguards to prevent the introduction of plum pox into the United

States. Therefore, we are making no changes based on this comment.

Plum pox is an important disease of fruit trees; should this strain

expand beyond eastern Europe, APHIS would reassess our import

regulations to ensure that fruit trees imported into the United States

are not infected with plum pox.

One commenter questioned previous occurrences of nursery stock or

propagative materials being imported into the United States from

private nurseries in France.

While the intention of the regulations was to prohibit the

importation into the United States of Chaenomeles, Cydonia, Malus,

Prunus, and Pyrus spp. from private nurseries in France, the

regulations were interpreted differently by plant regulatory officials

in the United States and abroad. As a result, some fruit trees from

private nurseries in France were imported into the United States.

To prevent a similar misunderstanding of the requirements for

importing Prunus spp. not immune to plum pox, we are adding wording to

Sec. 319.37-5(b) to make it clear that these plants must be grown in a

government operated nursery (research station).

Two commenters expressed concern that the importation of fruit

trees from private nurseries in France could have a negative economic

impact on domestic producers. One commenter suggested that we impose a

tariff on fruit trees from France to make the prices more comparable to

U.S. trees. The commenter felt that France grows and sells fruit trees

much less expensively than U.S. growers can and that fruit trees from

France have glutted the European and U.S. fruit tree markets. The other

commenter was concerned that easing trade restrictions would be

detrimental to domestic markets.

APHIS bases its decisions to allow fruit trees to be imported into

the United States on whether these importations can be made without

significant risk of plant pest introduction. We believe that certain

fruit trees produced in private nurseries in France, certified as

meeting the requirements in the regulations by the plant protection

service of France, may be imported into the United States without

posing a pest risk to the United States. Furthermore, we have no

authority to impose tariffs or to limit importations based on their

economic impact on domestic markets. Therefore, we are making no

changes based on this comment.

Miscellaneous

In addition, we are making nonsubstantive editorial changes to the

regulations to correct typographical errors.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions of the proposal as

a final rule, with the changes discussed in this document.

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 purposes of Executive

Order 12866 and, therefore, has not been reviewed by the Office of

Management and Budget.

We are amending the regulations to allow species of the genera

Chaenomeles, Cydonia, Malus, Pyrus, and certain species of Prunus

(those immune to plum pox virus) grown in private nurseries in France

to be imported into the United States as restricted articles under the

same conditions already applied to those same articles when grown in

government nurseries in France. All of these restricted articles must

be accompanied by a phytosanitary certificate of inspection stating

where the article was grown and certifying that the article was found

by the plant protection service of the country in which grown to be

free of various plant diseases. Also, all of the restricted articles

listed above are subject to a 2-year postentry quarantine period, as

specified in Sec. 319.37-7.

Prior to this final rule, the regulations stated that species of

the genera Chaenomeles, Cydonia, Malus, Pyrus, and certain species of

Prunus (those immune to plum pox virus) could only be certified from a

government operated nursery where the original parent stock is indexed

for the appropriate national fruit tree program. The regulations did

not specify that the trees also must be grown in the government

nursery. Thus the regulatory language resulted in different

interpretations of its intent by plant regulatory officials in the

United States and abroad.

During the first nine months of fiscal year 1994, approximately

312,893 fruit trees valued at $1.64 million were imported into the

United States from Belgium, France, and The Netherlands. Importations

of Malus spp. from all three countries accounted for 99.9

[[Page 51210]]

percent (312,840) of imported fruit trees. Thirty-two trees of Prunus

spp. and 21 of Pyrus spp. were also imported. There were no imports of

Chaenomeles spp. or Cydonia spp. Prices of imported fruit trees

averaged about $5.25 per tree.

Annually, domestic producers market about 20 million fruit trees of

these five genera, valued at approximately $105 million. Domestic tree

prices range from $5 to $6 per tree. Imported fruit trees, therefore,

currently account for only about 1.5 percent of fruit trees available

in the U.S. market.

Shipments from government research stations tend to be small,

whereas shipments from private nurseries are generally large.

Historically, we have received small shipments from France. In 1994

there was a single importation of 25,000 fruit trees from a private

nursery in France. In 1995, there were 4 shipments of fruit trees from

France (between 2 and 42 fruit trees per shipment) imported into the

United States. Therefore, we expect that as a result of this rule,

private nurseries in France could export 20,000 to 30,000 trees to the

United States each year. This number of fruit trees would account for

less than one-half of one percent of the fruit trees available in the

U.S. market. Furthermore, these fruit trees from France probably will

compete directly with imports from The Netherlands, thus lessening the

impact on U.S. producers. We anticipate, therefore, that this rule will

not have a significant economic impact on domestic fruit tree producers

or other small entities.

Also, we have determined, using the Small Business Administration

definition of a small business involved in the retail nursery business

or the wholesale trade of flowers and nursery stock (100 or fewer

employees), that there are currently about 9,097 small retail nurseries

and 11,347 small wholesale shippers of flowers and nursery stock in the

United States. We expect that these small businesses may benefit, if

only slightly, from this rule. They will gain access to a greater

variety of imported fruit trees, possibly at lower prices.

We are also removing the port of Laredo, TX, from the list of ports

with plant inspection stations. About 400 million plants are imported

through plant inspection stations into the United States annually. Only

24 shipments of 21,429 plants (less than 1 percent of 400 million) were

imported through the plant inspection station at Laredo in 1993. In

view of the low volume of plants imported into the United States

through the Laredo plant inspection station, we do not believe that

this rule will have a significant economic effect on businesses or

other entities, large or small. Moreover, any plants requiring written

permits and previously imported through Laredo could be diverted to the

ports of Brownsville or El Paso, TX, which still retain plant

inspection stations.

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 12778

This rule has been reviewed under Executive Order 12778, 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

This 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, Incorporation by

reference, Nursery stock, Plant diseases and pests, Quarantine,

Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, 7 CFR part 319 is amended as follows:

PART 319--FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 continues to read as

follows:

Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and

2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).

2. Section 319.37-5 is amended as follows:

a. In paragraph (b)(1), the first sentence is amended by adding the

words ``the article was'' immediately before the words ``grown to be''

and by removing the reference to ``(b)(2)'' and adding a reference to

``(b)(3)'' in its place.

b. Footnote 7 and its reference are removed.

c. Paragraph (b)(2) is redesignated as paragraph (b)(3) and a new

paragraph (b)(2) is added to read as set forth below.

d. Paragraph (d) is amended by adding a closed parenthesis

immediately after the words ``sweet-william''.

Sec. 319.37-5 Special foreign inspection and certification

requirements.

* * * * *

(b) * * *

(2) Species of Prunus not immune to plum pox virus (species other

than P. avium, P. cerasus, P. effusa, P. laurocerasus, P. mahaleb, P.

padus, P. sargentii, P. serotina, P. serrula, P. serrulata, P.

subhirtella, P. yedoensis, and P. virginiana) and grown in Belgium,

France, Germany, Great Britain, or The Netherlands shall be certified

only from the government operated nurseries (research stations) where

the certified plants were grown and the original parent stock is

indexed for the appropriate national fruit tree certification program.

* * * * *

Secs. 319.37-5, 319.37-6, 319.37-7, 319.37-8, and 319.37-13 [Amended]

3. Footnotes 8 through 12 and their references are redesignated as

footnotes 7 through 11, respectively.

Sec. 319.37-14 [Amended]

4. In Sec. 319.37-14, paragraph (b), under the list of ports of

entry in Texas, the asterisk immediately preceding the entry for Laredo

is removed.

Done in Washington, DC, this 25th day of September 1996.

A. Strating,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 96-25100 Filed 9-30-96; 8:45 am]

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