Importation of Clementines, Mandarins, and Tangerines From Chile

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the regulations to allow the importation, under certain conditions, of clementines, mandarins, and tangerines from Chile into the United States. Based on the evidence in a recent pest risk assessment and an accompanying risk management document, we believe these articles can be safely imported from all provinces of Chile, provided certain conditions are met. This action provides for the importation of clementines, mandarins, and tangerines from Chile into the United States while continuing to protect the United States against the introduction of plant pests.

EFFECTIVE DATE:

January 10, 2005.

FOR FURTHER INFORMATION CONTACT:

Ms. Jeanne VanDersal, Import Specialist, Phytosanitary Issues Management Staff, 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 dissemination of plant pests. The Government of the Republic of Chile has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow the importation into the United States of clementines, mandarins, and tangerines from Chile under certain conditions without methyl bromide fumigation. Chile also requested that we allow methyl bromide fumigation to remain an option for clementines, mandarins, and tangerines that do not meet the requirements of the systems approach or in case pests are found during routine inspections.

On October 22, 2002, we published a notice in the Federal Register (67 FR 64862-64863, Docket No. 02-081-1) in which we advised the public of the availability of a draft pest risk assessment and an accompanying risk management document that evaluated the risks associated with importing citrus from Chile. We solicited comments concerning those documents for 60 days ending December 23, 2002, and received no comments by that date. We subsequently amended the pest risk assessment in March 2004 to include information related to a Mediterranean fruit fly (Medfly) trapping in Chile in April 2003.

On March 22, 2004, we published in the Federal Register (69 FR 13262-13269, Docket No. 02-081-2) a proposal to amend the regulations to allow the importation, under certain conditions, of clementines, mandarins, and tangerines from Chile into the United States.

We solicited comments concerning our proposal for 60 days ending May 21, 2004. We received five comments by that date. They were from exporters, researchers, and representatives of State, local, and foreign governments. One commenter supported the proposed rule as written. The remaining commenters raised specific issues regarding the proposed rule. Those issues are discussed below by topic.

We proposed to allow the importation of clementines, mandarins, and tangerines from Chile subject either to the systems approach described in proposed § 319.56-2ll(d) or to fumigation with methyl bromide in Chile in accordance with proposed § 319.56-2ll(e). We also proposed to allow the importation of clementines, mandarins, and tangerines originating from areas in Chile where Medfly is known to occur provided they are subject to the cold treatment schedules prescribed in the Plant Protection and Quarantine (PPQ) Treatment Manual which is incorporated by reference at 7 CFR 300.1, “Plant Protection and Quarantine Treatment Manual.”

The national plant protection organization of Chile and the Chilean Exporters Association stated that the fumigation option should provide for the treatment to take place either in Chile or at the port of first arrival in the United States, noting that we allow this choice of treatment locations for other commodities being imported into the United States from Chile.

In response to this comment, § 319.56-2mm(e) of this final rule allows fruit requiring methyl bromide fumigation as a condition of entry to be fumigated in either Chile or the United States.

In our proposed rule, § 319.56-2ll(e) stated that fumigated fruit must be inspected in Chile at an APHIS-approved inspection site under the direction of APHIS inspectors in coordination with the national plant protection organization of Chile. Two commenters stated that an inspection following methyl bromide fumigation is unnecessary because the treatment's efficacy against target pests (Brevipalpus chilensis, Proeulia auraria, and Proeulia chrysopteris) has already been scientifically established.

We agree with the commenters that methyl bromide fumigation does address the risk of all three of the targeted pests and that post-fumigation inspection is not necessary to ensure phytosanitary security. Therefore, we have removed the proposed post-fumigation inspection requirement from paragraph (e) in this final rule. With respect to Proeulia auraria and Proeulia chrysopteris, we note that we incorrectly referred to these pests in the background information of the proposed rule as fruit leaf folders, whereas they are more correctly identified as tortricid leafrollers.

Two commenters stated that we referred to treatment schedule T104-a-1 in the proposed rule, but published T101-n-2-1. The commenters did not take issue with the prescribed treatment schedule itself, but simply questioned whether we published the right treatment schedule.

We did not publish T104-a-1 in its entirety in the proposed rule, which is what led to the confusion surrounding the treatment schedules. Schedule T104-a-1 includes a note that all citrus must be fumigated at a minimum of 50 °F, which is why we omitted the lower temperature options in the treatment schedule that was published in the proposed rule. Without the lower temperature options, the treatment appears to be the same as T101-n-2-1.

One commenter stated that, in the supplementary information of the proposed rule, Chile's Metropolitan Region is incorrectly listed as an area where Medfly is known to exist. The commenter added that Medfly was completely eradicated from this area and verified by the United States Department of Agriculture (USDA) officials in December 2003.

The Arica Province is the only area in Chile where Medfly is known to occur; the commenter is correct that the Medfly outbreak in the Metropolitan Region has been eradicated.

One commenter stated that a production site's “low prevalence” status should only be changed as a result of an inspection of the site itself by USDA officials. The commenter objected to the provisions of proposed § 319.56-211(d)(4) under which a production site's low prevalence status would be suspended for the remainder of the shipping season if a single Brevipalpus chilensis mite is found during the required pre-export phytosanitary inspection and contended that the term “low prevalence” in itself allows for the existence of some pests. The commenter also stated that the established procedure with other commodities and countries allows for such a shipment to continue to its destination provided that it undergoes an approved quarantine treatment. Further, the commenter claimed that suspending a production site's certification is unnecessary as long as a treatment that is efficacious against the targeted pest can be applied to a specific shipment before it is released for entry into U.S. commerce.

The systems approach requires certain actions to be taken by fruit producers to control Brevipalpus chilensis in the field in addition to packinghouses. The commenter is correct that production sites can be certified as “low prevalence” with the understanding that some Brevipalpus chilensis may be present. However, no single Brevipalpus chilensis mite should be present on the fruit after the fruit has been through the post-harvest processing procedures, which include washing, rinsing in a chlorine bath with brushing using bristle rollers, and waxing. If, after undergoing these procedures, a Brevipalpus chilensis mite is found, it would indicate a greater problem with the implementation of the systems approach and the production site and/or the packinghouse would need to be investigated. Suspending the site's certification allows for us to conduct such an investigation and for the site to correct any errors in its implementation of the systems approach. The commenter is correct that a site should be allowed to continue shipping to the United States because an efficacious treatment against Brevipalpus chilensis exists. That is why this rule provides that a site that has lost its eligibility to ship under the systems approach may continue shipping to the United States using methyl bromide fumigation for the remainder of the shipping season.

One commenter questioned the appropriateness of using a pest risk assessment developed for Medfly in Peru for Chile.

In the pest risk assessment and risk management document developed for the proposed rule, we stated that a recent assessment examining Medfly in Peru was applicable to Chile because the pest and hosts from the two countries are the same and the climatic conditions and environments are similar. The only portion of the pest risk assessment for Peru that was adapted for the pest risk assessment for Chile was the section pertaining to the risk ratings for Medfly, which are considered high for both Peru and Chile and would have been no different if the section was redone for Chile.

One commenter stated that our proposal failed to address the risk posed by fruit flies and that interceptions of Medfly in Chile in both 2003 and 2004 should be cause to stop shipments of citrus from Chile.

We do not agree with this commenter's statement that we failed to address fruit fly concerns in our proposed rule. While the proposed rule dealt largely with describing a systems approach for Brevipalpus chilensis, it also included provisions requiring that eligible citrus from regions in Chile where Medfly is known to occur be cold treated in accordance with the PPQ Treatment Manual. We acknowledge that Medfly was intercepted in Chile in both 2003 and 2004 and we will consider any region in Chile where Medfly is captured to be subject to these provisions until it has been eradicated. We believe that cold treatment will prevent the introduction of Medfly into the United States.

One commenter stated that his company had developed a new fumigation treatment using pure phosphine at low temperatures that would not damage fruit as methyl bromide fumigation can. The commenter requested that we add this new treatment to the regulations as an alternative to methyl bromide fumigation.

APHIS would need to evaluate a treatment's effectiveness before listing it as an approved treatment. The commenter is welcome to send information pertaining to the treatment and its efficacy against targeted pests to the person listed under FOR FURTHER INFORMATION CONTACT. If the treatment is found to be efficacious against a specific pest or pests, we may propose to add it to the regulations as an approved treatment and present the proposal for public comment.

Miscellaneous

In our March 2004 proposed rule, we proposed to add the conditions governing the importation of clementines, mandarins, and tangerines from Chile as § 319.56-211. In this final rule, those conditions are added as § 319.56-2mm.

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 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.

For this rule, we have prepared an economic analysis. The economic analysis provides a cost-benefit analysis as required by Executive Order 12866, as well as an analysis of the potential economic effects of this rule on small entities, as required under the Regulatory Flexibility Act. The economic analysis is summarized below. See the full analysis for the complete list of references used in this document. Copies of the full analysis are available on the APHIS Web site at http://www.aphis.usda.gov/ppd/rad/clementinesecon.pdf or by calling or writing the person listed under FOR FURTHER INFORMATION CONTACT. Copies of the economic analysis are also available for viewing in our reading room, located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.

Summary of Economic Analysis

Our analysis estimates expected benefits and costs associated with allowing the importation of clementines, mandarins, and tangerines from Chile into the United States. The analysis assumes that this change in the regulations will not lead to an increased risk of pest outbreaks in the United States. Currently, no clementines, mandarins, or tangerines are being imported into the United States from Chile. According to the Chilean Exporters' Association, 1,300 hectares are planted with clementines, mandarins, and tangerines in Chile, and Chile would like to export approximately 1,600 metric tons of clementines, mandarins, and tangerines to the United States. This amount is a little more than 15 percent of Chile's total exports of these commodities in 2001 (table 1).

Clementines and mandarins are not produced in the United States in commercially significant quantities. Tangerines are produced domestically. Most imports from Chile are expected to be clementines, not tangerines. An earlier economic analysis by APHIS examined the relationship between imports of Spanish clementines and domestically produced tangerines but did not find evidence of substitution. That analysis did not look at the relationship between Spanish clementines and other citrus. However, U.S. producers of other kinds of citrus—especially California navel oranges—have expressed concerns that imports of Spanish clementines have taken market share and depressed prices for navel oranges, reflecting that the imports are marketed in the United States during the same season as navels.

An increase in supply of clementines could potentially increase competition in the United States for domestically produced citrus, such as oranges and tangerines. If imports from Chile increase, U.S. producer prices could decline during the time when a larger supply is on the market. However, Chilean clementines are expected to enter the United States primarily between April and September, which is the off-season for domestic tangerines. Most of the fresh early tangerines from Florida, which is the largest producer of tangerines, are shipped from October to January, while most of the fresh Honey tangerines are shipped from February to May (Brown 2000). California navel oranges are marketed primarily from November to May, while California Valencia oranges are primarily marketed from April to October.

Table 2 shows the monthly orange shipments for fresh uses of three major citrus producing States. Oranges include Valencia, navel, and early/midseason varieties. Domestic orange shipments between April and September comprise about 25 percent of total shipments annually. Although the data represent only a proportion of the production dedicated for fresh utilization, they provide an indication of the domestic orange marketing seasons for comparative purposes. The April-September marketing period for Chilean clementines matches the California and Florida Valencia marketing seasons, so the clementines could displace some fresh market Valencia orange sales. However, the expected amount of 1,600 metric tons represents a small share (less than 2 percent) of the domestic shipments between April and September (99,712 metric tons). The competition with various summer fruits is likely to have a far greater impact. Given the small number of expected imports from Chile and the different marketing seasons, any potential impacts on U.S. citrus producers would be minimal.

Most U.S. imports of clementines, mandarins, and tangerines (table 3) currently come from Spain, which ships the commodities from mid-September to mid-March. Chile would export these commodities to the United States between April and September each year. These imports would increase the availability of these fruits during the Spanish off-season, which would lead to benefits for U.S. importers and consumers.

To capture the impact on U.S. importers, an inverse demand curve characterizing the U.S. demand for imported clementines, tangerines, and mandarin oranges was estimated. The demand for the imported commodities can be related to the export prices and quantities for Spanish fruits exported to all markets except the United States. Spanish export data were used because over 83 percent of U.S. imports of these fruits was from Spain during 1997-2001. Data on imports for 1991-2001 were used to analyze the expected impacts for the 10-year period (2004-2013) subsequent to the entry of the imports from Chile.

Imports from Chile were assumed to grow 13.55 percent each year, which was the average annual growth during 1999-2001 in Chile's exports to Japan, its best export market, and that imports for 2004 will be 1,595 metric tons (table 4). It was assumed that U.S. imports from sources other than Chile will grow 6.46 percent per year, which was the import growth during 1999-2000, starting from an estimate of 87,372 metric tons imported for 2002, which was the average import quantity during 1999-2001 (table 3).

Expected future gross revenues (table 5) were discounted by using real interest rates of 3 percent and 7 percent as recommended by the Office of Management and Budget. For further sensitivity analysis, a rate of 5.34 percent, which was estimated using annual income and rate of return data for U.S. farmers during 1966-1994, is also provided. The annualized increase in gross revenues received by U.S. importers of clementines, mandarins, and tangerines under this rule was an estimated $0.60 million per year during 2004-2013, depending on the interest rate chosen. This suggests that the rule will yield economic benefits to U.S. importers during the period in which it remains in force. Consumers also benefit from the greater availability of clementines during the off-season for domestic production and other imports. The rule will result in net benefits to society given that the new imports are not expected to significantly compete with domestic citrus production and will not lead to pest introductions.

Impacts on Small Entities

According to the 1997 Census of Agriculture, there were 17,000 citrus producers (excluding grapefruit, lemon, and lime producers) in the United States. The U.S. Small Business Administration defines a small citrus producer as one with annual gross revenues no greater than $0.75 million. The USDA's National Agricultural Statistics Service reported that 3.8 percent of U.S. fruit and tree nut producers accounted for 95.1 percent of sales in 1982, 4.2 percent of fruit and tree nut producers accounted for 96.2 percent of sales in 1987, and 4.6 percent of fruit and tree nut producers accounted for 96.7 percent of sales in 1992. These data indicate that the majority of U.S. citrus producers are small entities. Our economic analysis suggests that Chilean imports will not significantly compete with domestic citrus production such as tangerines and navel oranges because the imports will be shipped largely during the off-season for U.S. production of these fruits. Although the Chilean imports are expected to overlap with some domestic orange shipments such as Valencia oranges, the amount to be imported is expected to be a small percentage of the total U.S. orange shipments during the importing months. As a result, the importation of clementines, mandarins, and tangerines from Chile will likely have minimal adverse impact on domestic citrus producers, large or small.

Importers of clementines, mandarins, and tangerines will likely benefit under this rule. The number of importers that can be classified as small is not known. However, the rule will not lead to an adverse economic impact on small entities in these industries (fresh fruit and vegetable wholesalers with no more than 100 employees, NAICS 422480; wholesalers and other grocery stores with annual gross revenues no greater than $23 million, NAICS 445110; warehouse clubs and superstores with annual gross revenues no greater than $23 million, NAICS 452910; and fruit and vegetable markets with gross revenues no greater than $6 million, NAICS 445230).

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 rule allows clementines, mandarins, and tangerines to be imported into the United States from Chile. State and local laws and regulations regarding clementines, mandarins, and tangerines 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 would 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.

Use of Methyl Bromide

The United States is fully committed to the objectives of the Montreal Protocol, including the reduction and ultimately the elimination of reliance on methyl bromide for quarantine and pre-shipment uses in a manner that is consistent with the safeguarding of U.S. agriculture and ecosystems. APHIS reviews its methyl bromide policies and their effect on the environment in accordance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.) and Decision XI/13 (paragraph 5) of the 11th Meeting of the Parties to the Montreal Protocol, which calls on the Parties to review their “national plant, animal, environmental, health, and stored product regulations with a view to removing the requirement for the use of methyl bromide for quarantine and pre-shipment where technically and economically feasible alternatives exist.”

The United States Government encourages methods that do not use methyl bromide to meet phytosanitary standards where alternatives are deemed to be technically and economically feasible. In some circumstances, however, methyl bromide continues to be the only technically and economically feasible treatment against specific quarantine pests. In addition, in accordance with Montreal Protocol Decision XI/13 (paragraph 7), APHIS is committed to promoting and employing gas recapture technology and other methods whenever possible to minimize harm to the environment caused by methyl bromide emissions. As noted above, we welcome data or other information regarding other treatments that may be efficacious and technically and economically feasible that we may consider as alternatives to methyl bromide.

National Environmental Policy Act

An environmental assessment and finding of no significant impact (FONSI) have been prepared for this rule. The assessment provides a basis for the conclusion that the importation of clementines, mandarins, and tangerines under the conditions specified in this rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and FONSI were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment and FONSI may be viewed on the Internet at http://www.aphis.usda.gov/ppq/enviro_docs/chil.html. Copies of the environmental assessment and FONSI are also available for public inspection in our reading room, located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming. In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

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 0579-0242.

Government Paperwork Elimination Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 319

• Coffee
• Cotton
• Fruits
• Honey
• Imports
• Logs
• 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. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. A new § 319.56-2mm is added to read as follows: