APHIS Final Rule Significantly Revises its Fruit & Vegetable Import Regulations (Part II - Notice-Based Process for Fruits/Veggies)

The substantial changes include, among other things, a new notice-based process (as opposed to rulemaking) that establishes criteria for APHIS' approval of certain fruits and vegetables for importation into the U.S., as well as a new notice-based process for acknowledging pest-free areas in foreign countries.

This is Part II, the second part of a multi-part series of BP summaries on the final rule and highlights 7 CFR 319.56-4 which contains APHIS' new notice-based process for the approval of certain fruits and vegetables for importation. See ITT's Online Archives or 07/24/07 news 07072415 for Part I.

Notice-Based Process for Approving Certain Fruits and Vegetables for Importation

The final rule has completely revised 7 CFR 319.56-4 to now pertain to a new notice-based process for approving the importation of certain fruits and vegetables. Highlights of this revised section include (partial list):

Only five phytosanitary measures allowed for notice-based process. APHIS has determined that the application of one or more of the following 5 phytosanitary measures to certain imported fruits and vegetables mitigates the pest risk posed by those commodities and that such produce may be imported into the U.S. subject to one or more of these measures. The five measures are:

1. Fruits or vegetables are subject to inspection upon arrival in the U.S. and comply with all applicable provisions of 7 CFR 319.56-3;
2. The fruits or vegetables are imported from a pest-free area in the country of origin and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin;
3. The fruits or vegetables are treated in accordance with Part 305 (Phytosanitary Treatments);
4. The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization (NPPO) of the exporting country, and have been found free of one or more specific quarantine pests identified by risk analysis as likely to follow the import pathway; and
5. The fruits or vegetables are imported as commercial consignments only.

Other than as specified below, commodities that require phytosanitary measures other than one or more of the 5 phytosanitary measures above may only be imported in accordance with 7 CFR 319-56-3 and commodity-specific requirements contained elsewhere in 7 CFR 319.56.

Fruit and vegetable imports not previously approved. For fruits and vegetables that were not approved for importation prior to August 17, 2007, importation under 7 CFR 319-56-4 will be authorized if APHIS has determined that, based on the information available, the application of one or more of the 5 phytosanitary measures listed above is sufficient to mitigate the risk that plant pests or noxious weeds could be introduced into or disseminated within the U.S. via the imported fruit or vegetable.

This determination, including APHIS' pest risk analysis for the subject fruit or vegetable must be published in the Federal Register for a 60 day comment period.

If APHIS determines that no comments were received on the pest risk analysis or that the comments did not reveal necessary changes to the pest risk analysis or that changes were made in response to public comment but they did not affect the overall conclusions of the analysis and APHIS' determination of risk, APHIS will announce its decision in a subsequent Federal Registernotice and if appropriate, begin issuing permits for importation of such new or previously unapproved fruits or vegetables.

Previously approved fruit and vegetable imports. Fruits and vegetables that were authorized importation under 7 CFR 319.56 as of August 17, 2007, either directly by permit or by specific regulation, and that were subject only to one or more of the above 5 phytosanitary measures and to the general requirements of 7 CFR 319-56-3, may continue to be imported into the U.S. under the same requirements that applied before August 17, 2007, unless APHIS determines that one or more of the five designated phytosanitary measures are insufficient to mitigate the risk posed by their importation under 7 CFR 319.56-4.

Amendment of import requirements. If after August 17, 2007, APHIS determines that one or more of the designated phytosanitary measures is not sufficient to mitigate the risk imposed by the importation of any fruits and vegetables under 7 CFR 319-56-4, APHIS will prohibit or further restrict importation of the fruit or vegetable. APHIS may also publish a Federal Register notice of this determination that contains its effective date and invites public comment.

Authorized fruit/vegetables to be published in manual. The name, origin and applicable import requirements for all fruits and vegetables authorized importation under 7 CFR 319.56-4 will be found in APHIS' Fresh Fruits and Vegetables Import Manual (link below).

(In the preamble, APHIS notes that it is in the process of converting this manual into a searchable database that will allow searches by commodity or by country, and that will list the conditions that apply to each particular commodity from a specified country. It anticipates having the system operating by the end of 2007.)

(See ITT's Online Archives or 05/12/06, 05/16/06, 05/22/06, 05/24/06, and 05/25/06 news, 06051215, 06051625, 06052235, 06052425, and 06052535, for Parts I - V of BP summary of the April 2006 proposed rule.

See ITT's Online Archives or 08/03/06 news, 06080335, for BP summary on reopening of comment period on the proposed rule.)

APHIS Fresh Fruits and Vegetables Import Manual (08/2004-01 PPQ) available at http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/fv.pdf

APHIS final rule (D/N APHIS-2005-0106, FR Pub 07/18/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-13708.pdf