APHIS Proposes Significant Revision of its Fruit & Vegetables Import Regulations, Etc. (Part III - Permits & Approval Process)

This is Part III of a multipart series of summaries on this proposed rule. Part III provides information on the proposed changes to import permits and the approval process for importing fruits and vegetables. See future issues of ITT for additional summaries.

APHIS Proposes Changes to Fruits and Vegetable Permits

Proposal to do away with terms "general permit", "specific written permit". Under current regulations, except for fruits or vegetables that may be imported under the general permit¹ in 7 CFR 319.56-2(b), (c), and (d), or for fruits and vegetables imported under an oral permit in accordance with 7 CFR 319.56-3(d), no fruits or vegetables may be imported unless a specific written permit has been issued and unless all other applicable requirements of the regulations and any other requirements specified by APHIS in the specific written permit are met.

APHIS states that the term general permit¹ is confusing, as it is simply authorization in the text of the regulations, allowing the importation of (1) certain dried, cured, or processed fruits and vegetables (except frozen fruits and vegetables); (2) certain fruits and vegetables grown in Canada; and (3) certain fruits and vegetables grown in the British Virgin Islands that are imported into the U.S. Virgin Islands.

To eliminate this confusion, APHIS states it is proposing that the commodities described in (1) - (3) above may be imported without a permit, while all other fruits and vegetables must be imported under permit in accordance with proposed 7 CFR 319.56-3(b), or under oral permits under proposed 7 CFR 319.56-3(b)(4).

¹ APHIS also terms these "general written permits"

Proposal for new "special use" permit for otherwise prohibited small lots. APHIS also proposes to add a new 7 CFR 319.56-3(b)(7) to authorize the issuance of special use permits (i.e., for trade shows, diplomatic presentations, scientific research, etc.) for the importation of small lots of fruits or vegetables that are otherwise prohibited importation under the regulations, provided that the fruits or vegetables: (1) are not intended for commercial distribution; (2) are to be imported, transported, stored, or held under specific conditions that the Administrator has determined will mitigate the pest risk posed by the imported fruits or vegetables to the extent practicable; and (3) are to be consumed, disposed of, destroyed, or re-exported at a time and in a manner and place ordered by an inspector or as specified in the permit.

APHIS Proposes to Streamline Approval Process for Certain Fruit, Vegetable Imports

APHIS notes that the current process for approving new imports takes approximately 18 months to over 3 years (beginning with the initial request and ending with the publication of a final rule) and has been in place since 1987. In order to keep pace with the steadily rising volume of import requests, APHIS is proposing a new approach for the approval process, as follows:

(In 1987, APHIS elected to begin listing all newly approved fruits and vegetables in the regulations through notice-and-comment rulemaking.)

"Notice-based process" would avoid rulemaking process in most instances. The proposed process for approving imports (referred to as a "notice-based process") would apply only to those commodities that, based on the findings of risk analysis, APHIS determines can be safely imported subject to one or more of the following phytosanitary measures:

inspection upon arrival in U.S. and subject to other general requirements of 7 CFR 319.56-3; and

certified origin from a pest-free area in the country of origin in accordance with revised 7 CFR 319.56-5; and/or

treatment for pest(s) in accordance with 7 CFR Part 305; and/or

inspection and certification that commodity is pest free in the country of origin by the national plan protection organization (NPPO) of the exporting country.

Under the proposed notice-based process, APHIS would gather information on commodities for which it receives an import request and would also conduct a pest risk assessment. If any quarantine pests are associated with the commodity in the country or other region of origin, APHIS would evaluate whether the risk posed by such pests can be mitigated by on or more of the above-described measures.

If the risks can be mitigated, APHIS would issue a notice for public comment detailing the pest risk assessment and the designated phytosantiary measures that would be required. APHIS would then evaluate comments received in response to this notice and could then issue a notice announcing either: (1) the determination that the commodity at issue can be imported using one or more of the above-described risk mitigation measures (APHIS would then begin issuing import permits); or (2) an alternative course of action such as the current rulemaking-based approach, a revised pest risk analysis, etc.

APHIS states that if the notice-based process is adopted for use, it would not list commodities approved under this approach in the regulations; however, approved commodities would be listed in APHIS' fruits and vegetables manual (http://www.aphis.usda.gov/ppq/manuals/port/FV_Chapters.htm) and documentation supporting their approval would be made available on the internet. APHIS would also establish a stakeholder registry at https://web01.aphis.usda.gov/PPQStakeWeb2.nsf that would allow interested persons to sign up for email notification of changes to the fruit and vegetables import policies and any approvals under the proposed notice-based process. Persons interested in receiving such emails should visit the Web site and select "plant imports" and "fruits and vegetables" as topics of interest.

Rulemaking process would be used if additional phytosanitary measures required. The importation of fruits and vegetables that require additional phytosanitary measures beyond one or more of the above-described measures would continue to require specific prior rulemaking, which would list approved commodities and their phytosanitary measures in the regulations.

(See ITT's Online Archives or 05/12/06 and 05/16/06 news, 06051215 and 06051625, for Parts I and II of BP summary of this proposed rule.)

APHIS Proposed Rule (D/N APHIS-2005-0106, FR Pub 04/27/06) available at

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-3897.pdf