Revision of Fruits and Vegetables Import Regulations, 39482-39528 [E7-13708]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 72, Number 137 (Wednesday, July 18, 2007)]
[Rules and Regulations]
[Pages 39482-39528]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13708]



[[Page 39481]]

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Part II





Department of Agriculture





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Animal and Plant Health Inspection Service



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7 CFR Parts 305, 319 and 352



Revision of Fruits and Vegetables Import Regulations; Final Rule

Federal Register / Vol. 72, No. 137 / Wednesday, July 18, 2007 / 
Rules and Regulations

[[Page 39482]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Parts 305, 319, and 352

[Docket No. APHIS-2005-0106]
RIN 0579-AB80


Revision of Fruits and Vegetables Import Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are revising and reorganizing the regulations pertaining to 
the importation of fruits and vegetables to consolidate requirements of 
general applicability and eliminate redundant requirements, update 
terms and remove outdated requirements and references, update the 
regulations that apply to importations into territories under U.S. 
administration, and make various editorial and nonsubstantive changes 
to regulations to make them easier to use. We are also making 
substantive changes to the regulations, including: Establishing 
criteria that, if met, will allow us to approve certain new fruits and 
vegetables for importation into the United States and to acknowledge 
pest-free areas in foreign countries more effectively and expeditiously 
and doing away with the practice of listing in the regulations specific 
commodities that may be imported subject to certain types of 
phytosanitary measures. These changes are intended to simplify and 
expedite our processes for approving certain new imports and pest-free 
areas while continuing to allow for full public participation in the 
processes. This rule revises the structure of the fruits and vegetables 
import regulations and establishes a new process for approving certain 
new commodities for importation into the United States. It does not, 
however, allow the importation of any specific new fruits or 
vegetables, nor does it alter the conditions for importing currently 
approved fruits or vegetables except as specifically described in this 
document. To the extent that our trading partners consider the length 
of time it takes to conduct the rulemaking process a trade barrier, 
these changes may facilitate the export of U.S. agricultural 
commodities by reducing that time for fruits and vegetables that meet 
this rule's criteria. The changes do not alter the manner in which the 
risk associated with a commodity import request is evaluated, nor do 
they alter the manner in which those risks are ultimately mitigated.

EFFECTIVE DATE: August 17, 2007.

FOR FURTHER INFORMATION CONTACT: Regarding the commodity import request 
evaluation process, contact Mr. Matthew Rhoads, Program Manager, 
Planning, Analysis, and Regulatory Coordination, PPQ, APHIS, 4700 River 
Road Unit 141, Riverdale, MD 20737; (301) 734-8790.
    Regarding import conditions for particular commodities, contact Ms. 
Donna L. West, Senior Import Specialist, Commodity Import Analysis and 
Operations, PPQ-PRI, APHIS, 4700 River Road Unit 133, Riverdale, MD 
20737; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56 through 319.56-8, referred to below as the regulations or the 
fruits and vegetables regulations) the Animal and Plant Health 
Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA 
or the Department) prohibits or restricts the importation of fruits and 
vegetables into the United States from certain parts of the world to 
prevent plant pests from being introduced into and spread within the 
United States.
    On April 27, 2006, we published in the Federal Register (71 FR 
25010-25057, Docket No. APHIS-2005-0106) a proposal \1\ to amend the 
regulations by revising and reorganizing the regulations pertaining to 
the importation of fruits and vegetables to consolidate requirements of 
general applicability and eliminate redundant requirements, update 
terms and remove outdated requirements and references, update the 
regulations that apply to importations into territories under U.S. 
administration, and make various editorial and nonsubstantive changes 
to regulations to make them easier to use. We also proposed to make 
substantive changes to the regulations, including: (1) Establishing 
criteria within the regulations that, if met, would allow us to approve 
certain new fruits and vegetables for importation into the United 
States and to acknowledge pest-free areas in foreign countries more 
effectively and expeditiously; (2) doing away with the practice of 
listing specific commodities that may be imported subject to certain 
types of phytosanitary measures; and (3) providing for the issuance of 
special use permits for fruits and vegetables.
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    \1\ To view the proposed rule and the comments we received, go 
to https://www.regulations.gov, click on the ``Advanced Search'' tab, 
and select ``Docket Search.'' In the Docket ID field, enter APHIS-
2005-0106, then click ``Submit.'' Clicking on the Docket ID link in 
the search results page will produce a list of all documents in the 
docket.
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    We solicited comments on our proposal for 60 days ending on July 
26, 2006. On August 1, 2006, we published a document in the Federal 
Register (71 FR 43385, Docket No. APHIS-2005-0106) reopening the 
comment period for our proposed rule until August 25, 2006. We received 
49 comments by the close of the extended comment period. The comments 
were from representatives of State and foreign governments, industry 
organizations, importers and exporters, distributors, and private 
citizens. The majority of the commenters supported the proposed rule in 
terms of improving transparency and reorganizing the structure of part 
319; however, some commenters also raised questions or concerns about 
our proposal, which are discussed below by topic.

Changes to the Proposed Rule

    We made changes to the proposed rule which we will note in this 
paragraph as an easy reference for the reader. We established a notice-
based approach for pest-free areas, added ``commercial consignments 
only'' as one of the measures eligible for the notice-based approach, 
removed proposed requirements that would have provided for the issuance 
of special use permits, and made several other nonsubstantive editorial 
and technical changes to our proposed rule. The reasons for those 
changes are discussed later in this document.

Pest-Free Areas

    Proposed Sec.  319.56-5 included provisions that would govern our 
recognition of pest-free areas. In those proposed provisions, we stated 
that after determining that an area was free of a specified pest, we 
would publish a notice in the Federal Register announcing that the area 
meets the criteria for pest freedom in Sec.  319.56-5. Several 
commenters raised concerns with this approach because pest-free areas 
would be recognized by APHIS without an opportunity for public comment. 
The commenters asked that we allow for public input before taking such 
an action.
    We agree with the commenters and have amended Sec.  319.56-5(c) in 
this final rule to provide for a 60-day comment period following 
publication of a notice announcing that an exporting country has 
provided us with the documentation required by the regulations to 
support a determination that an area is free of a specified pest and 
that we have

[[Page 39483]]

completed our evaluation of the request. Only after any comments 
received in response to the notice have been carefully considered and 
our initial conclusion affirmed, would we publish a notice recognizing 
the area's freedom from the particular pest. Removal of an area's pest-
free status will continue to be effective immediately.
    One commenter asked if APHIS will develop standards or requirements 
that countries will need to comply with when establishing pest-free 
areas. A second commenter stated that the proposed provisions were not 
strenuous enough in setting out how a pest-free area is identified and 
confirmed and relied too heavily on participants in the source country.
    A country seeking APHIS recognition of a pest-free area must submit 
official documentation that establishes the pest-free status of that 
area in accordance with the criteria found in International Standards 
for Phytosanitary Measures (ISPM) No. 4 ``Requirements for the 
Establishment of Pest Free Areas,'' which is incorporated by reference 
into the regulations. Further, the country must provide us with the 
survey protocol used to determine and maintain pest-free status, as 
well as protocols for remedial actions to be performed upon detection 
of a pest. Assembling the documentation necessary to address the 
criteria of ISPM No. 4 and designing the required survey and response 
protocols is the responsibility of the national plant protection 
organization (NPPO) of the requesting country; we believe this is 
entirely appropriate and is not at all an indication of undue reliance 
on the requesting country. We note in this regard that the regulations 
provide that the submitted protocols require APHIS approval before an 
area would be recognized as pest free and that pest-free areas are 
subject to audit by APHIS to verify their status.
    One commenter asked if we could presume that a pest was absent or 
had always been absent if there are no records of the pest's presence 
in any pest surveillance data.
    If the pest surveillance data referred to by the commenter were 
collected using accepted and reliable methods and covered a reasonable 
time period, it is reasonable to expect that we could consider those 
data as supporting a claim of pest freedom. We would not, however, make 
a determination on the basis of those data alone; as noted in our 
response to the previous comment, there are several factors that must 
be addressed before we will recognize an area as free from a particular 
pest.

APHIS' Mission

    Two commenters expressed the opinion that APHIS' mission has 
shifted from trying to prevent the introduction of foreign pests and 
diseases into the United States to one which enables the implementation 
of trade agreements that could have negative impacts on domestic 
producers. One of those commenters added that responding to foreign 
countries' claims, increasing the supply of foreign commodities, and 
increasing the variety of commodities in the United States are not part 
of APHIS' mission. Three other commenters stated that expediting and 
simplifying rulemaking does not correspond with APHIS' mission to 
safeguard American agriculture. The commenters stated that APHIS was 
not justified in proposing the notice-based approach.
    APHIS' mission is to protect the health and value of American 
agriculture and natural resources, and we remain focused on preventing 
the introduction of pests and diseases into the United States. Without 
the activities that APHIS undertakes to protect America's animal and 
plant resources from agricultural pests and diseases, threats to our 
food supply and to our Nation's economy would be enormous. In recent 
years, the scope of APHIS' protection function has expanded beyond pest 
and disease exclusion and management. Because of its technical 
expertise and leadership in assessing and regulating the risks 
associated with agricultural imports, APHIS has an expanded role in the 
global agricultural arena. Now, the Agency must also respond 
effectively to other countries' animal and plant health import 
requirements and secure the acceptance of science-based standards that 
ensure America's agricultural exports, worth over $50 billion annually, 
are protected from unjustified trade restrictions. Nonetheless, APHIS 
has finite resources, and we must explore and implement proven and 
prudent measures to improve the regulatory process in order to allow us 
to allocate our available resources more effectively and to better 
address new risks as they emerge. We are convinced that simplifying the 
administrative process for dealing with low-risk commodity import 
issues will allow us to improve our effectiveness in protecting the 
plant health of American agriculture.

Eligible Measures for Notice-Based Approach

    In the proposed rule, we noted that pest risk analyses for the 
importation of new commodities often consider only the risks posed by 
commercially produced and shipped fruit, and that noncommercial 
shipments may pose an entirely different pest risk than commercial 
shipments. For that reason, the regulations have provided that many 
fruits and vegetables could only be imported in commercial shipments, 
and the table in paragraph (a) of proposed Sec.  319.56-13, ``Fruits 
and vegetables allowed importation subject to specified conditions,'' 
included a number of articles for which ``commercial shipments only'' 
was the only specified condition. We were open to the idea of including 
``commercial shipments only'' as one of the designated phytosanitary 
measures listed in Sec.  319.56-4 and specifically solicited comment on 
the subject.
    We received two comments on the addition of ``commercial shipments 
only'' as a designated measure, both of which supported the idea. We 
have concluded that this approach has merit and we have added this 
measure as one of the measures eligible for the notice-based approach 
in Sec.  319.56-4. (We note, however, that in the regulatory text of 
this final rule, we refer to ``consignments,'' rather than 
``shipments.'' In our proposed rule, we discussed replacing the term 
``shipment'' with ``consignment,'' but that change was not reflected 
consistently throughout the proposed rule. The terms commercial 
consignment, consignment, and noncommercial consignment are all defined 
in Sec.  319.56-2 in this final rule, as they were in the proposal.)
    In our proposal, we stated that if the notice-based process was 
adopted for use by APHIS, we would remove from the regulations those 
listed commodities that are currently approved for importation subject 
only to one or more of the designated measures. In keeping with that 
intent and to reflect our addition of ``commercial consignments only'' 
to the list of designated measures, we have amended the list in Sec.  
319.56-13(a) in this final rule by removing those articles that had 
been listed in the proposed rule for which ``commercial shipments 
only'' was the only specified condition. Those articles we have removed 
in this final rule, like other articles omitted from the proposed 
regulations by virtue if their being subject only to one or more 
designated measures, will continue to be listed in APHIS' fruits and 
vegetables manual, and the documentation supporting their approval will 
be made available on the Internet.
    One commenter stated that he did not support the notice-based 
system because he believed that the determination as to which commodity 
import requests

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could be addressed using the notice-based system and which must be 
addressed through rulemaking is a subjective one.
    We strongly disagree with this commenter. After we receive a 
request from a foreign government, we will conduct a pest risk 
analysis. If the pest risk analysis finds that the commodity can be 
imported under one or more of the mitigation measures eligible for the 
notice-based approach, then we will follow the notice-based process. If 
we find that additional measures are required, then we will follow the 
rulemaking process.
    One commenter stated that we did not provide enough information as 
to why the conditions we listed in the proposed rule warrant the 
notice-based process.
    We designed this notice-based system to target commodities that 
will require mitigations that are widely accepted by plant health 
experts and have a proven track record of efficacy. As stated 
previously, APHIS is a regulatory agency that has finite resources, and 
we have been exploring ways to improve the regulatory process for 
several years. The notice-based process will simplify the 
administrative process, while having no adverse effects on the 
scientific rigor of our analysis, the transparency of the process, or 
the public's ability to comment and participate in the process.
    Two commenters asked that we clarify that rulemaking will be 
required if the pest risk analysis process determines that a systems 
approach is necessary.
    A systems approach utilizes a series of risk mitigation measures 
intended to individually and cumulatively reduce pest risk. Such 
measures include sampling regimens, pest surveys, packing requirements, 
and other measures determined to be necessary to mitigate the pest risk 
posed by the particular commodity. By this definition, a systems 
approach could be eligible for the notice-based process if the system 
consists only of the designated measures we have determined qualify for 
the notice-based process; e.g., if a commodity requires origin from a 
pest-free area, pre-export inspection and certification, an approved 
post-harvest treatment, and inspection at the port of arrival in the 
United States. However, if additional mitigations such as field pest 
surveys, packinghouse safeguards, etc., were required, the commodity 
would not be eligible for the notice-based process.
    One commenter asked how APHIS will consider approving additional 
measures for the notice-based process in the future.
    Trading partners may petition us requesting specific additional 
measures to be included in the notice-based process and we would 
consider those requests at that time, or we may propose additional 
measures on our own initiative. Any additions to the list of designated 
measures would occur only through rulemaking. If we believe that 
additional measures should be eligible for the notice-based process, we 
would develop a new proposal, publish it in the Federal Register for 
comment, and follow with a final rule explaining our decision.
    One commenter stated that we should consider adding systems 
approaches as one of the measures eligible for the notice-based 
process, especially in cases where similar species of fruits and 
vegetables are involved, or for which there is already an existing 
systems approach in a country. The commenter also asked about including 
places and sites of production that are free from specific pests and 
low pest prevalence areas in the notice-based approach.
    We have chosen to initiate this new process with basic requirements 
and phytosanitary measures that are widely accepted and have a proven 
track record of efficacy, but may consider making the measures 
requested by the commenter part of the notice-based process in the 
future.

Information Provided to Public

    On June 19, 2001, we published a notice in the Federal Register (66 
FR 32923-32928, Docket No. 00-082-1) describing the procedures and 
standards that govern the consideration of import requests by the 
Agency's Plant Protection and Quarantine (PPQ) programs. That notice 
was published in response to a specific direction in sec. 412(d) of the 
Plant Protection Act (7 U.S.C. 7712(d)). One commenter stated that 
APHIS never published a followup to that notice and that the notice did 
not comply with all of the directives in the Plant Protection Act.
    We revisited our June 2001 notice and reviewed the elements we were 
directed to address by sec. 412(d), and we believe, as we did at the 
time it was published, that our notice addressed all the elements 
specified in the Plant Protection Act. While we did not publish a 
document that formally responded to the comments we received on the 
notice, we have taken actions consistent with the recommendations made 
in some of those comments, such as developing and publishing amendments 
to our fruits and vegetables regulations, establishing a peer review 
system, and establishing regulations that govern the submission of 
import requests (see 7 CFR 319.5). We are in the process of developing 
a follow-up notice to our June 2001 notice that will offer an updated 
description of the procedures that govern our consideration of import 
requests. We will publish that notice in a future edition of the 
Federal Register.
    Several commenters requested that APHIS routinely provide more 
information to the public in the form of country-specific operational 
work plans, internal communications within the Agency, and 
communications between APHIS and the petitioning country. One commenter 
specifically requested that we include country-specific work plans in 
our pest risk analyses as to allow for the public to comment on the 
work plans as well.
    The operational work plans referred to by commenters (also known as 
bilateral work plans) are agreements between PPQ, officials of the NPPO 
of the foreign government involved, and, when necessary, foreign 
commercial entities that specify in detail the application of 
phytosanitary measures that will comply with our regulations governing 
the import or export of a specific commodity. An operational work plan 
is not finalized until after the final rule, or in the case of the 
notice-based approach, a final notice, has been published. As a 
longstanding matter of policy, APHIS does not make operational work 
plans available for public comment, but copies can be obtained by 
request. A more detailed description of how bilateral work plans are 
developed and used by APHIS can be found in a notice we published in 
the Federal Register on May 10, 2006 (71 FR 27221-27224). With respect 
to the suggestion that we routinely publish internal APHIS 
communications and bilateral communications between APHIS and foreign 
NPPOs, we strongly believe that it would not be appropriate or 
constructive. We must of course, communicate very clearly to the public 
the basis for our decisions. We will present our pest risk analyses and 
other documents supporting our regulatory decisionmaking in a manner 
that provides the public with a complete picture of what led to our 
decision. Furthermore, we will continue to answer questions and share 
additional background information whenever possible in response to 
specific requests. There will be no substantive alteration of the 
public's opportunity to review and comment on our conclusions.
    One commenter asked how foreign governments could obtain the manual 
that includes the lists of names and production areas of enterable 
fruits and vegetables.

[[Page 39485]]

    The manual, ``Fresh Fruits and Vegetables Import Manual,'' can be 
viewed on the Internet at https://www.aphis.usda.gov/import_export/
plants/manuals/ports/downloads/fv.pdf.
    In our proposed rule, we stated that we were in the early stages of 
converting APHIS' fruits and vegetables manual into a searchable 
database that will allow interested persons to search by commodity or 
by country, and that will list clearly the conditions that apply to 
each particular commodity from a specified country. One commenter asked 
when the import database will be available and how often it will be 
updated.
    Our goal is to have the system operating as soon as possible after 
the publication of this rule. The import database will be updated 
whenever the fruits and vegetables manual is updated. In the meantime, 
a searchable database is currently available at: https://
manuals.cphst.org/q56/Q56Main.cfm.

Operations in Other Countries

    One commenter asked that we provide an outline of what information 
we would require from a foreign country to process an import request.
    As noted previously, we have established regulations in Sec.  319.5 
that govern the submission of import requests. Those regulations 
provide that persons who wish to import plants, plant parts, or plant 
products that are not allowed importation under the conditions in part 
319 (including the fruits and vegetables regulations) must file a 
request with APHIS in order for us to consider whether the new 
commodity can be safely imported into the United States. The completed 
request must address, among other things, questions about the party 
submitting the request, about the commodity proposed for importation 
into the United States, the proposed end use of the imported commodity 
(e.g., propagation, consumption, milling, decorative, processing, 
etc.), shipping information, description of pests and diseases 
associated with the commodity, and current strategies for risk 
mitigation or management in order for us to consider their import 
requests.
    Several commenters questioned the ability of all foreign countries 
to provide all the data necessary for the preparation of pest risk 
analyses. The commenters stated that APHIS should be required to 
provide an assessment of the quality of the data provided or a 
description of the effort that APHIS had to expend to gather the 
necessary data so as to better allow stakeholders to assess the 
relative comprehensiveness of the data.
    It is APHIS' responsibility to ensure we have a sufficient and 
reliable body of data to enable us to prepare an analysis that provides 
an accurate picture of pest risk. In some cases, the NPPO or other 
entity making the request may provide a draft pest risk analysis along 
with their submission; in such cases, that pest risk analysis is 
subject to rigorous review by APHIS to verify the accuracy of the 
information. In other cases, APHIS will prepare a draft pest risk 
analysis using the information described above that is required by the 
regulations in Sec.  319.5. In either case, we will conduct a 
literature search, examine interception records, and perform site 
visits as appropriate. All of this information will be used in 
preparation of the pest risk analysis and will be made available for 
public comment. We expect that stakeholders and other reviewers will 
focus on the content of the pest risk analysis and the 
comprehensiveness and quality of the data used in its preparation, 
rather than on a report as to the level of effort that went into its 
preparation.
    One commenter stated that the pest risk analysis should contain a 
report that the NPPO of the exporting country has the resources, 
experience, staff, capability, and willingness to do the work to 
prevent pests and diseases from entering the United States. The 
commenters asked specifically how APHIS will determine that the NPPO 
has adequate and competent resources available to effectively carry out 
prescribed mitigation measures.
    Our past experiences with an NPPO and the information gained 
through site visits allow us to determine if an exporting country's 
NPPO will have the appropriate staff and resources to carry out the 
actions it would need to comply with particular mitigation 
requirements; if it does not, then we would explore alternative 
mitigation measures or, if none were available, deny the import 
request. It would be an empty gesture if we were to approve the 
importation of a commodity subject to risk mitigation requirements that 
the exporting country was unable to meet effectively, just as it would 
be a failure of risk management from our perspective to assign risk 
mitigation requirements that we did not expect could be met or did not 
conclude would be met.
    One commenter stated that APHIS assumes that NPPOs are similar to 
each other and that the pests and diseases are the same or similar and 
can be addressed with similar mitigation measures. The commenter stated 
that when assessing a country's risk, we should factor in resources 
that are available and past experience with the organization.
    We disagree strongly and can assure all interested parties that 
APHIS makes no such assumptions. The commenter's suggestion appears to 
confuse risk assessment with the operational aspects of risk 
management. In the risk assessment phase, the risk presented by a 
particular commodity is assessed scientifically and objectively; the 
ability of an NPPO to undertake activities that will mitigate the 
identified risks does not become a factor until after the unmitigated 
risk has been assessed and risk management measures are being 
considered. At that point, we most certainly take an NPPO's 
capabilities into account when considering the import request. While we 
may require similar mitigation measures for the same commodity from two 
different locations when pest conditions and climate conditions in the 
two exporting countries are similar, we evaluate each import petition 
on an individual basis, taking into consideration the unique risks 
associated with the commodity and the efficacy, feasibility, and 
impacts of the risk mitigation options. As noted above, we evaluate 
very carefully the capability of the NPPO and its plant health 
infrastructure.
    One commenter noted that proposed Sec.  305.3(a) states that ``all 
treatments approved under part 305 are subject to monitoring and 
verification by APHIS.'' The commenter said that in the case of imports 
from Chile, that provision should not imply any additional actions will 
be required beyond those already performed by APHIS and Chile's 
Servicio Agricola y Ganadero (SAG) under current operational 
instructions for the existing preclearance program in Chile.
    The provision pointed out by the commenter does not alter the 
existing preclearance program in Chile. We explained in the proposed 
rule that many sections of the fruits and vegetables regulations have 
required that treatments be monitored by an inspector, and that in 
establishing Sec.  305.3(a), we were simply consolidating those 
requirements into a single new section.

Stakeholder Participation

    Several commenters stated that the 60-day comment period APHIS 
would provide for pest risk analyses might not allow enough time for 
those outside of APHIS to conduct their own scientific review.
    We note that the regulations would provide for a comment period of 
60 days, which does not preclude us from

[[Page 39486]]

extending the comment period when necessary.
    Several commenters said that we can improve transparency by 
allowing stakeholders to become involved during the pest risk analysis 
process. Those commenters asked that we take comments from the public 
on our pest risk analyses during the drafting stage. One commenter 
asked that APHIS notify stakeholders at the time an import request is 
received. Two other commenters stated that the proposed rule, if 
adopted, would reduce or eliminate stakeholder input.
    With respect to allowing the public to comment on pest risk 
analyses during the drafting phase, such a process would have a serious 
adverse impact on the timely preparation of pest risk analyses. We 
believe a process in which an analysis is prepared, reviewed, and 
brought to a point where wider circulation and publication for comment 
is appropriate yields constructive comments that can be considered 
before any analysis is finalized. Therefore, we do not plan to take 
comments on pest risk analyses while they are under development.
    With regard to notifying commenters at the time import requests are 
received, we will begin making available, on a quarterly basis, a 
document that lists all outstanding pest risk analysis import requests 
made by countries that have provided the information required under the 
regulations in Sec.  319.5 for us to begin the risk analysis process. 
The list will be available on the Internet and will include contact 
information if stakeholders want additional information on the status 
of specific pest risk analyses.
    Finally, we must again emphasize that the changes made in this rule 
will not reduce or impair in any way the opportunities that 
stakeholders will have to offer input or comments. As has been the case 
prior to this final rule, the public will be afforded ample opportunity 
to offer comments on any proposed import action. The only difference 
under this final rule will be that in some cases, comments will be 
solicited through the notice-based process.
    One commenter stated that commenters often raise valid regulatory 
or science-based concerns during the comment period that tend to be 
discounted by APHIS and that commodities are permitted entry regardless 
of biological threats.
    We disagree strongly with the view expressed by the commenter. 
First, we must point out that the comment does not address the 
substance of the rule, but the commenter's apparent disagreement with 
prior agency decisions. Second, it must be noted again that when we 
receive comments on a proposed rule or its supporting analyses, we 
consider carefully the individual issues raised in those comments and 
respond as comprehensively as we can to each of them in our final rule. 
In some cases, we agree with the points raised by the commenters and 
change our approach accordingly in the final rule; indeed, in some 
cases we will withdraw a particular proposal in light of new 
information offered by commenters. Conversely, when we do not agree 
with a point raised by a commenter, we provide an explanation in our 
final rule as to why we disagree and why we are continuing with a 
particular approach. We will continue to consider carefully all 
comments under the notice-based approach and to address those comments 
in the context of the final pest risk analyses that will be made 
available prior to the approval of new imports. We have stated in the 
past that if zero tolerance for pest risk were the standard applied to 
international trade in agricultural commodities, it is quite likely 
that no country would ever be able to export a fresh agricultural 
commodity to any other country. Our pest risk analysis process will 
identify and assign appropriate effective mitigations for any 
identified pest risks, i.e., the biological threats referred to by the 
commenter. If, based on our pest risk analysis, we conclude that the 
available mitigation measures against identified pest risks are 
insufficient to provide an appropriate level of protection, then we 
will not authorize the importation of the particular commodity.

Benefits of Implementing Notice-Based Approach

    Several commenters stated that we cited benefits to consumers, but 
none to domestic producers. Three commenters stated that the benefits 
to consumers seem overstated and the risks to domestic agriculture from 
increased and expanded imports are downplayed. One of those commenters 
added that she was worried that we were opening the floodgates to cheap 
imports that would put domestic producers at a disadvantage.
    The risks associated with new imports are not downplayed and will 
continue to be considered and addressed with scientific rigor. Benefits 
to domestic consumers were a factor in developing the notice-based 
approach, but certainly not the only one. APHIS can attest to the fact 
that many trading partners do at times consider the length of the 
process to be burdensome and indefensible. We emphasized in the 
proposed rule that to the extent that our trading partners consider the 
length of time it takes to conduct the import approval process through 
rulemaking a trade barrier, the changes to that process in this rule 
could facilitate the export of U.S. agricultural commodities by 
demonstrating our commitment to eliminating trade barriers and 
encouraging our trading partners to do the same. Such an outcome would 
be of benefit to domestic producers. While we recognize that new 
imports may occasionally have some negative economic impacts on some 
domestic producers due to increased competition, our decisionmaking is 
tied under our plant health authorities to the assessment of risk, not 
issues of economic competitiveness.
    Several commenters stated that there are often barriers to domestic 
producers that are not always based on science and asked what 
assurances domestic producers had that facilitating our import approval 
process will prompt a similar response from foreign countries. Two 
commenters asked if each of the countries which have been granted 
access to the U.S. market have an equivalent and reciprocal process. 
Three commenters added that we should obtain assurances from our 
trading partners that they will simplify their import processes as 
well.
    USDA actively and vigorously pursues foreign market access for U.S. 
products. While we anticipate that this rulemaking will support these 
efforts, there are no guarantees. We are obligated to follow the 
principles and procedures of World Trade Organization (WTO) agreements, 
including the obligation to base our regulations on science. Other 
members of the WTO are obligated to do so as well. We view this rule as 
a measure for improving the timeliness of our action on import 
requests, and of our emphasis on science as a basis for decisionmaking 
while maintaining the fullest practicable opportunity for all 
interested parties to participate in the process. We expect our trading 
partners to evaluate our requests with equivalent dispatch. Each 
country has its own process, with some being more complex than others; 
our process is one of the most scientifically rigorous, but one which 
will be improved by this final rule.
    One commenter asked that we conduct yearly examinations of changes 
in market access, response to petitions, etc., and another asked that 
we identify instances in which foreign trading partners have 
substantially modified their approach to U.S. fruit and

[[Page 39487]]

vegetable exports on the basis of how APHIS has reduced the 
administrative burden on fruit and vegetable exports to the United 
States.
    APHIS has produced reports that document our activities and 
accomplishments in support of both phytosanitary (plant health) and 
sanitary (zoonotics and animal health) trade activities on a regular 
basis for several years. Those reports describe the activities 
pertaining to U.S. export market access, retention, and expansion, as 
well as changes in import market access. Reports through fiscal year 
2005 can be found at https://www.aphis.usda.gov/is/tst/
Publications.html. We will continue to analyze our accomplishments in 
both import and export activities on a regular basis. These reports 
provide an opportunity for the public to evaluate our performance in 
facilitating imports and exports.
    Several commenters disagreed that the current rulemaking process 
was an impediment to trade and stated that we need to allow maximum 
opportunity for public comment. One commenter stated that whether or 
not our rulemaking process was an impediment to trade is a matter for 
WTO, not foreign countries, to determine.
    As stated previously, the notice-based approach will not in any way 
diminish the opportunity for public comment. We have stated and believe 
that some countries view our process for approval of import requests as 
a substantial impediment to trade. We proposed this action with the 
intent of making the Agency more effective and efficient, while still 
employing an exceptionally transparent, science-based risk analysis 
process with the widest possible opportunity for public input. We 
believe that by modifying the administrative part of our import 
evaluation process, we will be better able to focus our resources. 
Given the considerable improvements in risk management documentation 
and the increase in the number of personnel dedicated to risk 
management in PPQ in recent years, we are convinced that the notice-
based process will expedite the import evaluation process and make it 
more open and transparent than it has ever been.

APHIS' Resources

    Two commenters asked whether we had sufficient staff to handle 
expedited scientific reviews. The commenters asked that APHIS provide 
the number of scientists currently dedicated to fruit and vegetable 
pest and disease risk analyses. One of the commenters asked that this 
information be provided to the public each time a new import request is 
made. The commenter asked that we clarify the current backlog on risk 
analyses.
    The commenters clearly misunderstand the purpose, intent, and 
import of this rule. As stated previously, the notice-based process is 
not an expedited scientific review. The science-based risk analysis 
process will remain the same--it is the administrative process that 
will be expedited. With regard to personnel, we have sufficient 
personnel available to handle the review of data and information for 
the completion of pest risk analyses. We are unable to provide the 
exact number of scientists dedicated to fruit and vegetable pest risk 
analyses because all are not dedicated to import-related issues. Some 
of those scientists are also completing assessments for issues related 
to the facilitation of exports \2\ and crucial domestic programs. In 
addition, at any given time, the numbers can vary based on whether the 
scientists are assigned to one area or another in response to workload 
and changing priorities.
---------------------------------------------------------------------------

    \2\ Pest risk analyses needed to help us address export issues 
are always assigned high priority, and there is no backlog of 
outstanding export issues.
---------------------------------------------------------------------------

    With regard to notifying the public of new import requests, we 
noted earlier in this document that we will be providing, on a 
quarterly basis, a document that lists all outstanding pest risk 
analysis import requests, by commodity and country, made by countries 
that have provided the information required under the regulations in 
Sec.  319.5 for us to begin the risk analysis process. That document 
will be posted on the Internet and distributed to persons who have 
signed up to the PPQ stakeholder registry. To join the registry, go to 
PPQ's Internet home page (https://www.aphis.usda.gov/plant_health/) and 
follow the ``Join the PPQ Stakeholder Registry'' link.
    With respect to the backlog of risk analyses, we noted in the 
proposed rule that we have approximately 400 ``requests'' in the queue. 
However, we received many of these requests some time ago but have been 
unable to take action on them because they were incomplete or otherwise 
lacking and a response to our inquiries has not yet been received from 
the requestor. If, for the purposes of estimating the backlog, we were 
to count only those official requests that are supported by required 
information at this time, we have approximately 70 that are pending 
assignment and prioritization and 110 in various stages of development.
    Three commenters raised concerns with issues brought up in the 
National Plant Board (NPB) report titled, ``Safeguarding American Plant 
Resources (A Stakeholder Review of the APHIS-PPQ Safeguarding 
System).'' The report, published in July of 1999, examined APHIS' 
safeguarding system and made recommendations to improve upon the 
system. The commenters stated that there should be no changes to the 
regulations until the report is finalized and its recommendations are 
taken into full account. One of those commenters stated that the report 
contains references to fragmented and dispersed risk management 
functions; the need for a better process to monitor the efficacy of 
risk mitigation measures; and more training and actual field experience 
to ensure that mitigation measures chosen are operationally feasible. 
The commenter added that the risk analysis program is not yet 
adequately funded.
    In August 2005, we reported that PPQ had completed the 
implementation process for the recommendations contained in the 
stakeholder review, with virtually all of the more than 300 
recommendations in the Safeguarding Review fully evaluated and 
implemented or in the process of being implemented.\3\ Among our 
accomplishments during the first 5 years of the implementation phase 
were the strengthening and restructuring of our risk assessment work 
and the building of a strong methods development program through our 
Center for Plant Health Science and Technology (CPHST). We have 
clarified roles and responsibilities for risk management in PPQ and 
dedicated additional resources to that function.
---------------------------------------------------------------------------

    \3\ We made the decision not to implement a small number of 
recommendations after completing our evaluation, and a number of 
other recommendations were passed on to the Department of Homeland 
Security after the 2003 reorganization.
---------------------------------------------------------------------------

    In terms of monitoring the efficacy of risk mitigation measures, we 
work closely with the Bureau of Customs and Border Protection (CBP) on 
measures such as fruit cutting at the port of entry and port of entry 
inspections. Inspection guidelines based on our pest risk analyses are 
developed for each new commodity allowed entry into the United States. 
In addition, APHIS' International Services staff also monitors programs 
in exporting countries to ensure that mitigation measures are being 
appropriately applied and that they are effective.
    With regard to the need for more training and actual field 
experience to assure that the mitigation measures

[[Page 39488]]

chosen are operationally feasible, we routinely provide opportunities 
for our risk managers, some of whom have extensive operational 
experience, to observe and participate in the application of field 
measures.
    Finally, we disagree that the risk analysis program is not yet 
adequately funded. As noted previously, we believe that we have 
sufficient personnel available to handle the review of data and 
information for the completion of pest risk analyses and have recently 
hired several additional risk analysts.
    Four commenters raised concerns with CBP having sufficient 
resources and staff to monitor the increased imports that would be 
associated with this rule. Three of those commenters referenced a 
recent Government Accountability Office (GAO) report in which GAO 
determined that despite some positive developments, ``the agencies face 
management and coordination problems that increase the vulnerability of 
U.S. agriculture to foreign pests. CBP has not developed sufficient 
performance measures that take into account the agency's expanded 
mission or that consider all pathways by which prohibited agricultural 
items or foreign pests may enter the country.'' The commenters stated 
CBP faces significant resource and performance issues and that this 
could lead to future pest infestations. One commenter stated that there 
would be an increased need for additional APHIS staff to monitor the 
imports and the conditions imposed on future imports. The commenter 
noted that if we were to presume that most of those requests are 
eligible for the notice-based process and the commodities start to 
enter the United States, it appears that APHIS does not have the staff 
to monitor its mitigation measures.
    We consult with CBP at various stages of the rulemaking process, 
beginning once a regulatory work plan has been developed and through 
the publication of a final rule. We will similarly consult with CBP 
about actions that we may take based on the notice-based process 
established by this rule. CBP may raise any concerns with monitoring 
required for mitigation measures at those times. If CBP does not have 
the appropriate resources to monitor mitigations as determined by the 
pest risk analysis, then we will modify our mitigations or otherwise 
work with CBP to find efficacious mitigation measures that CBP can 
monitor.
    Further, increased imports will also generate more revenue for 
APHIS and CBP through the collection of additional user fees. This 
increase in funds can be used to increase staffing and improve upon 
other resources that will be used to monitor mitigations. With regard 
to CBP not having developed sufficient performance measures, new 
performance measures were developed by CBP and were implemented on 
October 1, 2006.
    One commenter asked if more resources would be devoted toward 
export petitions as a result of this final rule.
    APHIS employs trade directors who are assigned specific geographic 
areas of responsibility, and each trade director works with one import 
specialist and one export specialist. There will be no changes to this 
structure as a result of this final rule. As noted previously, when 
pest risk analyses are needed for export issues, they are always 
assigned a high priority.

Import Requirements for Specific Commodities

    One commenter wanted to clarify that pineapple from Thailand will 
be subject to general requirements under Sec.  319.56-3 and proposed 
paragraphs (b)(2)(vi) and (b)(5)(vii) of Sec.  319.56-13, but no other 
requirements. The commenter also asked why pineapple from Thailand has 
been restricted importation to Hawaii.
    Section 319.56-13 of our proposed rule erroneously stated that 
pineapple from Thailand was prohibited entry into Hawaii only, when in 
fact it is currently prohibited entry into all U.S. States and 
territories except for Guam and the Commonwealth of the Northern 
Mariana Islands (CNMI). To correct this error, we are revising the 
entry in the table for pineapples from Thailand in Sec.  319.56-13 to 
provide that pineapple from Thailand is allowed entry into Guam and 
CNMI only.
    Two commenters requested that we remove the preclearance inspection 
requirement for sand pears from Korea because it had not been required 
previously.
    The commenters are incorrect. As stated previously, the proposed 
rule did not make any changes to existing import requirements, except 
for those specifically mentioned in the rule. We have been requiring 
preclearance inspections for sand pears from Korea since 1990, and 
while that requirement was not listed in the regulations it has been 
contained in the fruits and vegetables manual and is implemented by 
administrative order.
    We proposed to clarify that only Allium spp. without tops may be 
imported into Guam, due to the presence of the leaf tip die back 
disease, Mycosphaerella schoenoprasi, and exotic species of leaf miners 
of Allium spp. in countries that regularly trade with Guam. One 
commenter asked that we continue to allow Allium spp. from South Korea 
into Guam under the same conditions that we have in the past. The 
commenter added that tops of Welsh onion (Allium fistulosum) and stems 
of garlic (Allium sativum) have historically been allowed importation 
into Guam from South Korea and that the sudden prohibition of those 
vegetable parts as a result of the proposed changes would have an 
effect on Korean residents living in Guam.
    We proposed to allow only Allium spp. without tops to be imported 
into Guam, due to the presence of the leaf tip die back disease, 
Mycosphaerella schoenoprasi, and exotic species of leaf miners of 
Allium spp. in countries that regularly trade with Guam. Those pests, 
which are associated with the Allium spp. tops and are not pests of 
Allium spp. bulbs, are not present in Guam. The restrictions on the 
importation of Allium spp. tops are necessary to prevent the 
introduction of Mycosphaerella schoenoprasi and exotic species of leaf 
miners into Guam.
    One commenter asked that the regulations, where they provide for 
the importation of pineapples, be amended to cover all varieties of 
pineapple, not just varieties that are limited to at least 50 percent 
smooth Cayenne by lineage.
    We cannot make such a change in this final rule. We would need to 
consider and document the risks associated with such a change and 
publish a proposed rule before we could amend the regulations to expand 
the number of pineapple varieties eligible for importation.
    Two commenters asked that we remove the phytosanitary certificate 
requirement for peppers from the Netherlands because a method to ensure 
full traceability is still under discussion.
    Following an interception of Mediterranean fruit fly (Medfly) in a 
consignment of habanero peppers shipped via the Netherlands, we began 
requiring consignments of peppers from the Netherlands to be 
accompanied by a phytosanitary certificate stating that the fruit had 
originated in a greenhouse in the Netherlands. When we began drafting 
our proposal, we believed it was necessary to reflect that 
administrative phytosanitary certificate requirement, which was cited 
in the fruits and vegetables manual, in the regulations. However, since 
the publication of the proposed rule, we have engaged in additional 
discussions with officials of the Dutch NPPO and have agreed that they 
have adequately addressed the Medfly issue that prompted the 
phytosanitary certificate requirement. That requirement had been

[[Page 39489]]

the only specified condition that necessitated peppers from the 
Netherlands being listed in the table in Sec.  319.56-13, so that entry 
does not appear in this final rule. We have also removed proposed 
paragraph (b)(5)(xi) in Sec.  319.56-13, which contained the 
phytosanitary requirement, because it is not applicable to any other 
entries in the table and have redesignated the remaining subparagraphs 
in paragraph (b)(5) accordingly.

Pest Risk Analyses

    One commenter asked how we will handle issues raised in the comment 
period that call into question the use of the notice-based approach on 
an import request.
    As established by this rule, the notice-based process is 
appropriate when we conclude, based on pest risk analysis, that the 
risks associated with a particular candidate for importation can be 
addressed using one or more of the designated measures listed in Sec.  
319.56-4(b). Accordingly, if information submitted during the comment 
period led us to change our conclusion about the appropriateness of 
those measures, then the notice-based process would end without the 
issuance of a permit. If the submitted information did not lead us to 
change our conclusions, we would likely proceed with a subsequent 
Federal Register notice announcing that we will begin issuing import 
permits; in that notice, we would discuss all the comments we received 
and our reasons for proceeding as we did.
    One commenter asked under what specific circumstances would APHIS 
publish a notice in the Federal Register, revising import requirements 
for certain imports, or prohibiting or restricting the importation of 
certain products as provided for in Sec.  319.56-4(d). The commenter 
also asked if APHIS would publish a followup notice if it resolves the 
problem which prompted publication of such an action and notice in the 
Federal Register.
    Paragraph (d) of Sec.  319.56-4 in the proposed rule and in this 
final rule provides that if we determine that one or more of the 
designated measures is not sufficient to mitigate the risk posed by any 
fruit or vegetable that has been authorized for importation under 
permit in accordance with Sec.  319.56-4, then APHIS will prohibit or 
further restrict the importation of the fruit or vegetable, and that we 
may publish a notice to inform the public of our findings. That notice 
would specify the amended import requirements, provide an effective 
date for the change, and invite public comment on the subject. As for 
what specific circumstances might lead us to take the actions described 
in Sec.  319.56-4(d), our proposed rule offered examples such as 
interceptions of new pests in imported fruits or vegetables or new 
evidence of risk or evidence of poor program implementation or 
performance. With respect to whether we would publish a followup notice 
following the resolution of a problem, we expect that such a decision 
would depend on the circumstances leading up to our initial action and 
the nature of our action (i.e., a prohibition on imports, a temporary 
suspension, the addition of new requirements, etc.). In any case, our 
goal will be to keep the public informed and ensure the transparency of 
our decisionmaking.
    One commenter asked why we were requiring exporting countries to 
conduct pest risk analyses when ISPM standards require that importing 
countries do so.
    We are not requiring that exporting countries conduct their own 
pest risk analyses, although an exporting country may provide 
substantial inputs and they may benefit by doing so. The main benefit 
of an exporting country assisting in conducting the pest risk analysis 
is that it can improve the quality of the data and conclusions and the 
validity and credibility of the analysis. In some cases, it might also 
expedite the approval of the commodity the country wishes to export. 
However, all externally prepared pest risk analyses are thoroughly 
evaluated by APHIS for completeness and consistency with APHIS-prepared 
analyses and revised as necessary.

Insect-Proof Packaging

    Section 319.56-2dd has contained restrictions on the importation of 
tomatoes from certain countries. In our proposal, we discussed moving 
that section to new Sec.  319.56-28 and stated that one of the changes 
we were proposing in conjunction with that move was to require the use 
of insect-proof containers or coverings, rather than fruit fly-proof 
containers or coverings. One commenter took issue with this proposed 
change, stating that it was unnecessary to address pest risk and citing 
significant economic costs that would be associated with covering 
tomatoes.
    Our statement in the proposed rule that ``[t]he current regulations 
require packaging and containers to be fruit fly-proof, not insect-
proof'' was in error; we should not have presented the subject as a 
proposed change in the regulations. The regulations in Sec.  319.56-2dd 
have required insect-proof containers or coverings since June 25, 2003, 
when we published a final rule (68 FR 37904-37923, Docket No. 02-026-4) 
making that change among many others. Prior to that, fruit fly-proof 
coverings and containers had been required, and that requirement had 
been in place since the regulations in Sec.  319.56-2dd were 
established in 1998.
    One commenter stated that it is unnecessary to require that 
tomatoes be packed in insect-proof cartons or containers or covered by 
insect-proof mesh or plastic tarpaulins during transport to the airport 
and subsequent exportation to the United States because any harmful 
insects that are present in a greenhouse will leave the tomatoes at the 
time of harvesting due to the moving of the plants. The commenter added 
that tomatoes which have been picked and are subsequently transported 
with the production facility do not attract additional insects.
    While the commenter may be correct with regard to specific targeted 
pests, the insect-proof mesh or plastic tarpaulin is intended to 
prevent hitchhiking pests that may attach to fruit while in transit, 
and not only pests that could attach at the time of growing, 
harvesting, or packing.

Use of Terms

    One commenter noted that proposed Sec.  319.56-6 provides that if 
APHIS is to be present in an exporting country to facilitate the 
exportation of fruits and vegetables and APHIS services are to be 
funded by the NPPO of the exporting country or a private export group, 
then the NPPO or private group must enter into a trust fund agreement 
with APHIS. The commenter contrasted that provision with proposed 
Sec. Sec.  319.56-23(b) and 319.56-38(f), which specifically state that 
the importation of the authorized commodities from Chile would be 
possible only if the Servicio Agricola y Ganadero (SAG) has entered 
into a trust fund agreement. The commenter asked that we clarify that 
the same would be expected of a private export group.
    We agree with the commenter and have amended Sec. Sec.  319.56-
23(b) and 319.56-38(f) in this final rule to be consistent with the 
wording of Sec.  319.56-6.
    One commenter noted that proposed Sec.  319.56-29 refers to the 
Chinese Ministry of Agriculture, while Sec.  319.56-39 refers to the 
NPPO of China.
    For consistency's sake, both of those sections in this final rule 
refer to the NPPO of China.

Frozen Fruit and Quick Freezing

    One commenter stated that there is some confusion around the 
concept of frozen fruit and asked that we add a definition of frozen 
fruit in Sec.  319.56-2.

[[Page 39490]]

    We use the term frozen fruits and vegetables as a description and 
quick freezing as the method used to obtain the frozen state. However, 
to provide clarification, this final rule includes a definition of 
frozen fruit or vegetable in Sec.  319.56-2, i.e.: ``Any variety of raw 
fruit or vegetable preserved by commercially acceptable freezing 
methods in such a way that the commodity remains at -6.7 [deg]C (20 
[deg]F) or below for at least 48 hours prior to release.''
    Proposed Sec.  319-56-12 provided that the importation from foreign 
countries of frozen fruits and vegetables is not authorized when such 
fruits and vegetables are subject to attack in the area of origin by 
plant pests that may not, in the judgment of the Administrator, be 
destroyed by quick freezing. One commenter asked how the Administrator 
will communicate the list of plant pests that are not destroyed by 
quick freezing.
    Section 305.17(b) of our phytosanitary treatments regulations 
contains a list of fruits and vegetables and their countries of origin 
for which quick freezing is not an authorized treatment. We have 
amended Sec.  319.56-12 in this final rule to provide that quick 
freezing is not an authorized treatment for those fruits and vegetables 
listed in Sec.  305.17(b).
    One commenter asked if quick freezing would also be subject to the 
monitoring and certification requirements under Sec.  305.3.
    Yes, quick freezing is considered a treatment and therefore, will 
be subject to the requirements in Sec.  305.3, ``Monitoring and 
certification of treatments.''

General Comments

    One commenter stated that we did not specify whether the notice 
published with APHIS' final determination will contain responses to 
public comments. The commenter noted that the opportunity for comment 
is meaningless unless the Agency responds to the significant points 
raised by the public.
    We intend to carefully review all comments we receive on the risk 
analyses. We are soliciting comments to help us determine the 
appropriate course of action and may change course based on comments. 
While the flow chart we presented on page 25017 of the proposed rule 
makes reference to a discussion of the comments being included with the 
pest risk analysis in the second notice, our discussion of the process 
may not clearly communicate our intention to respond to the comments we 
receive. We did not intend to imply that the notice-based process would 
eliminate our responding to the comments we receive on the notices. We 
will continue to respond to all substantive comments and will make the 
comments and our responses available as attachments to draft or final 
pest risk analyses.
    One commenter noted that proposed Sec.  319.56-4(d) states that 
APHIS ``may'' prohibit or further restrict the importation of the fruit 
or vegetable that has been approved for importation under Sec.  319.56-
4 when we determine that additional risk mitigation measures are 
necessary. The commenter stated that the use of the word ``may'' made 
it unclear whether or not we would in fact act to prohibit or further 
restrict a commodity should it become necessary. The commenter 
suggested rewording the sentence to read that ``APHIS shall prohibit or 
further restrict importation * * *.''
    We agree that our use of the word ``may'' could leave some doubt as 
to whether we will prohibit or further restrict imports if we determine 
that one of the designated phytosanitary measures is not sufficient to 
mitigate the risk posed by authorized imports. Therefore, we have 
amended Sec.  319.56-4(d) in this final rule so that it reads ``APHIS 
will prohibit or further restrict import