APHIS Final Rule Significantly Revises its Fruit & Vegetable Import Regulations (Part IV - Final - Reorganized Regulations, Etc.)

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 IV, the final part of a multi-part series of BP summaries on the final rule and highlights the reorganization of the commodity-specific requirements in 7 CFR 319.56, revised 7 CFR 319.56-5 which contains APHIS' new notice-based process regarding pest-free areas in foreign countries, etc. See ITT's Online Archives or 07/24/07, 07/25/07, and 07/27/07 news, 07072415, 07072510, and 07072715, for Parts I-III, respectively.

Reorganization of the Commodity-Specific Import Requirements

Only the commodity-specific requirements for imported fresh fruits and vegetables that need a pest mitigation treatment other than one or more of the five phytosanitary measures listed in 7 CFR 319.56-4 remain in 7 CFR 319.56.

The commodity-specific requirements of fresh fruits and vegetables whose pest risk mitigation can be met by one or more of the five listed phytosanitary measures are no longer in 7 CFR 319.56; they will instead be contained in APHIS' Fresh Fruits and Vegetables Import Manual.

(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.

The five measures are: (1) port-of-entry inspection, (2) approved postharvest treatment, (3) a phytosanitary certificate verifying that it originated from a pest-free area, (4) a phytosanitary certificate verifying that it is free from a specified pest(s), and/or (5) that the risk associated with the commodity can be mitigated through commercial practices.)

Notice-Based Processes Regarding Pest-Free Areas

The final rule has completely revised 7 CFR 319.56-5 to include the new notice-based processes for acknowledging/decertifying/reinstating pest-free areas in foreign countries. Highlights of this revised section include (partial list):

Importation allowed if area free of specific pest or pests. As provided elsewhere in 7 CFR 319.56, certain fruits and vegetables may be imported into the U.S. provided that they originate from an area that is free of a specific pest or pests. In some cases, the area of export must be free of all quarantine pests that attack the fruit or vegetable. In other cases, the area of export must be free of one or more quarantine pests that attack the fruit or vegetable, provided that the risk posed by the remaining quarantine pests is mitigated by other specific phytosanitary measures contained in 7 CFR 319.56.

Pest-free areas must meet international standards and survey/action protocols. Determinations of pest-free areas must be made in accordance with the criteria for establishing freedom from pests found in International Standard for Phytosanitary Measures No. 4 (ISPM 4), ''Requirements for the establishment of pest free areas'' of the United Nations' International Plant Protection Convention. In addition, APHIS must approve the survey protocol used to determine and maintain pest-free status, as well as protocols for actions to be performed upon detection of a pest. Pest-free areas are subject to audit by APHIS to verify their status.

Notice of pest-free areas. For an area to be considered free of a specified pest for the purposes of 7 CFR 319.56, APHIS must determine, and announce in a notice or rule published in the Federal Registerfor 60 days public comment, that the area meets the above ISPM 4 and survey protocol criteria. APHIS will announce its decision in a subsequent Federal Registernotice.

If APHIS does not receive comments on the notice or the comments received do not affect the overall conclusions of the notice and APHIS' determination of risk, APHIS would begin issuing permits for importation of the fruit or vegetable from a pest-free area, if appropriate.

Notice of decertification/reinstatement of pest-free areas. If a pest is detected in an area that is designated as free of that pest, APHIS would publish a notice in the Federal Registerannouncing that the pest-free status of the area in question has been withdrawn, and that imports of host crops for the pest in question are subject to application of an approved treatment for the pest. If a treatment for the pest is not available, importation of the host crops would be prohibited.

In order for a decertified pest-free area to be reinstated, it would have to meet the criteria of applying ISPM 4 and the criteria of survey protocols described above.

Labeling and certificate requirements. Each box of fruits or vegetables that is imported into the U.S. from a pest-free area under 7 CFR 319.56 must be clearly labeled with specified information including the name of the orchard or grove of origin (or the name of the grower); the name of the municipality and State in which the fruits or vegetables were produced; and the type and amount of fruit the box contains.

The imported fruits or vegetables must be accompanied by a phytosanitary certificate that contains an additional declaration that the fruits originate from a pest-free area that meets the ISPM 4 and survey protocol criteria.

Safeguarding during transport. If fruits or vegetables are moved from a pest-free area into or through an area that is not free of that pest, they must be safeguarded during the time they in a non-pest-free area by being covered with insect-proof mesh screens or plastic tarpaulins, including while in transit to the packinghouse and while awaiting packaging. If fruits or vegetables are moved through an area that is not free of that pest during transit to a port, they must be packed in insect-proof cartons or containers or be covered by insect-proof mesh or plastic tarpaulins during transit to the port and subsequent export to the U.S. These safeguards must be intact upon arrival in the U.S.

Monitoring and Certification of Phytosanitary Treatments

The final rule also adds a new 7 CFR 305.3 regarding monitoring and certification treatments which provides, among other things, that all treatments approved under 7 CFR Part 305 are subject to monitoring and verification by APHIS and that any treatment performed outside the U.S. must be monitored and certified by an official from the national plant protection organization (NPPO) of the exporting country and accompanied by a phytosanitary certificate issued by such NPPO. The phytosanitary certificate must certify that treatment was applied in accordance with APHIS regulations and be provided to an inspector when the commodity is offered for entry into the U.S.

During the entire interval between treatment and export, the consignment must be stored and handled in a manner that prevents any infestation by pests and noxious weeds.

APHIS Working with CBP on Standard Operating Procedures for Carriers

In the preamble to the final rule's regulatory text, APHIS notes that it is currently studying and working with U.S. Customs and Border Protection on standard operating procedures that can be used by carriers to ensure that agricultural commodities are handled and transported in accordance with APHIS regulations. These new standards will allow carriers to more easily handle consignments; importers and shippers will also benefit from this new uniform policy.

(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 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