This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

65933 

Vol. 76, No. 206 

Tuesday, October 25, 2011 

1To view the proposed rule, the PRA, the RMD, 

the economic analysis, and the comments we 

received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2010-0018. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS–2010–0018] 

RIN 0579–AD37 

Importation of Fresh Baby Kiwi From 

Chile Under a Systems Approach 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the fruits 

and vegetables regulations to allow the 

importation into the continental United 

States of baby kiwi fruit from Chile, 

subject to a systems approach. Under 

this systems approach, the fruit must be 

grown in a place of production that is 

registered with the Government of Chile 

and certified as having a low prevalence 

of Brevipalpus chilensis. The fruit must 

undergo pre-harvest sampling at the 

registered production site. Following 

post-harvest processing, the fruit must 

be inspected in Chile at an approved 

inspection site. Each consignment of 

fruit must be accompanied by a 

phytosanitary certificate with an 

additional declaration stating that the 

fruit had been found free of Brevipalpus 

chilensis based on field and 

packinghouse inspections. This final 

rule allows for the safe importation of 

fresh baby kiwi from Chile using 

mitigation measures other than 

fumigation with methyl bromide. 

DATES: Effective Date: November 25, 

2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David B. Lamb, Import Specialist, 

Regulatory Coordination and 

Compliance, PPQ, APHIS, 4700 River 

Road Unit 133, Riverdale, MD 20737– 

1231; (301) 734–0627. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in ‘‘Subpart—Fruits 

and Vegetables’’ (7 CFR 319.56–1 

through 319.56–52, 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 that are 

new to or not widely distributed within 

the United States. 

Previously, under the regulations, the 

importation into the United States of 

fresh baby kiwi (Actinidia arguta) from 

Chile was allowed only if the fruit was 

fumigated with methyl bromide. On 

March 21, 2011, however, we published 

in the Federal Register (76 FR 15225– 

15228, Docket No. APHIS–2010–0018) a 

proposal 1 to amend the fruits and 

vegetables regulations to allow the 

importation into the continental United 

States of baby kiwi fruit from Chile, 

subject to a systems approach. We 

proposed that the fruit would have to be 

grown in a place of production that is 

registered with the Government of Chile 

and certified as having a low prevalence 

of Brevipalpus chilensis. The fruit 

would have to undergo pre-harvest 

sampling at the registered production 

site. Following post-harvest processing, 

the fruit would have to be inspected in 

Chile at an approved inspection site. 

Each consignment of fruit would have to 

be accompanied by a phytosanitary 

certificate with an additional 

declaration stating that the fruit had 

been found free of Brevipalpus chilensis 

based on field and packinghouse 

inspections. 

We solicited comments concerning 

our proposal for 60 days ending May 20, 

2011. We received 23 comments by that 

date. They were from private citizens, 

growers, shippers, trade associations, a 

State department of agriculture, 

industry groups, and the Government of 

Chile. Most of the commenters 

supported the proposed rule, with only 

one opposing it outright and another 

supporting it with reservations. The 

issues raised by the commenters are 

discussed below. 

One commenter, while generally 

supportive of the proposed rule, 

expressed concern about how the 

imports of baby kiwi from Chile that 

would be allowed under this 

rulemaking could affect domestic kiwi 

growers. The commenter suggested that 

we should have provided a more 

extensive discussion of that potential 

impact, including statistics, in the 

preamble to the March 2011 proposed 

rule. The commenter did not present 

any new information, however. 

In the economic analysis that 

accompanied the proposed rule and was 

summarized in the preamble, we 

concluded that we expect the impact of 

fresh baby kiwi fruit imports from Chile 

to be minimal for domestic producers 

due to timing differences (baby kiwi 

would likely be imported from Chile 

during the off-season for U.S. producers) 

and the small quantity that we 

anticipated would be imported. The full 

economic analysis, which was 

conducted in accordance with Executive 

Order 12866 and the Regulatory 

Flexibility Act and was posted on the 

Regulations.gov Web site along with the 

proposed rule, featured a more 

extensive discussion of the possible 

economic impact of the rulemaking, 

including the potential impact on small 

growers. As the commenter did not 

present any evidence to the contrary, we 

stand by our original determination that 

the economic impact of the rulemaking 

on domestic growers of baby kiwi is 

likely to be minimal. 

A commenter from a State Department 

of Agriculture stated that shipments of 

baby kiwi from Chile should not be 

allowed entry into Florida until the 

effectiveness of the phytosanitary 

measures required under the proposed 

systems approach has been 

demonstrated through their use on baby 

kiwi imported from Chile into lowerrisk States. 

We have determined, for the reasons 

described in the risk management 

document (RMD) that accompanied the 

March 2011 proposed rule, that the 

measures specified in the RMD will 

effectively mitigate the risk associated 

with the importation of baby kiwi from 

Chile. The commenter did not provide 

any evidence suggesting that the 

mitigations are not effective. Therefore, 

we are not taking the action requested 

by the commenter. 

For greater clarity, we are making a 

change in this final rule to the 

requirement for an additional 

declaration on the phytosanitary 

certificate accompanying shipments of 


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65934 Federal Register / Vol. 76, No. 206 / Tuesday, October 25, 2011 / Rules and Regulations 

baby kiwi from Chile. As originally 

proposed, the additional declaration 

had to state that the fruit in the 

consignment was inspected and found 

free of Brevipalpus chilensis. This final 

rule provides that the additional 

declaration must also state that the fruit 

was grown, packed, and shipped in 

accordance with the requirements of the 

systems approach. 

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 change discussed in this 

document. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This final 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. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. The analysis is 

summarized below. Copies of the full 

analysis are available on the 

Regulations.gov Web site (see footnote 1 

in this document for a link to 

Regulations.gov) or by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

This final rule amends the regulations 

to allow the importation of fresh baby 

kiwi fruit from Chile into the 

continental United States under a 

systems approach. The systems 

approach provides an alternative to 

fumigation with methyl bromide of baby 

kiwi imported from Chile into the 

continental United States. 

The impact of fresh baby kiwi fruit 

imports from Chile will be minimal for 

domestic producers due to timing 

differences (baby kiwi are likely to be 

imported from Chile during the offseason for U.S. producers) and the small 

quantity expected to be imported. 

Although most U.S. growers of baby 

kiwi fruit are small entities by the 

standards of the Small Business 

Administration, our analysis concludes 

that the effects of this rule on U.S. baby 

kiwi fruit producers, regardless of their 

size, will be minimal. 

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 final rule allows baby kiwi to be 

imported into the continental United 

States from Chile. State and local laws 

and regulations regarding baby kiwi 

imported under this rule will be 

preempted while the fruit is in foreign 

commerce. Fresh baby kiwi are 

generally imported for immediate 

distribution and sale to the consuming 

public, and 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. 

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 

0579–0374. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 7 CFR Part 319 

Coffee, Cotton, Fruits, Imports, Logs, 

Nursery stock, Plant diseases and pests, 

Quarantine, Reporting and 

recordkeeping requirements, Rice, 

Vegetables. 

Accordingly, we are amending 7 CFR 

part 319 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, 7701–7772, and 

7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 

2.22, 2.80, and 371.3. 

■ 2. A new § 319.56–53 is added to read 

as follows: 

§ 319.56–53 Fresh baby kiwi from Chile. 

Fresh baby kiwi (Actinidia arguta) 

may be imported into the continental 

United States from Chile under the 

following conditions: 

(a) Production site registration. The 

production site where the fruit is grown 

must be registered with the national 

plant protection organization (NPPO) of 

Chile. Harvested baby kiwi must be 

placed in field cartons or containers that 

are marked to show the official 

registration number of the production 

site. Registration must be renewed 

annually. 

(b) Low-prevalence production site 

certification. The fruit must originate 

from a low-prevalence production site 

to be imported under the conditions in 

this section. Between 1 and 30 days 

prior to harvest, random samples of fruit 

must be collected from each registered 

production site under the direction of 

the NPPO of Chile. These samples must 

undergo a pest detection and evaluation 

method as follows: The fruit must be 

washed using a flushing method, placed 

in a 20- mesh sieve on top of a 200-mesh 

sieve, sprinkled with a liquid soap and 

water solution, washed with water at 

high pressure, and washed with water at 

low pressure. The process must then be 

repeated. The contents of the 200-mesh 

sieve must then be placed on a petri 

dish and analyzed for the presence of 

live Brevipalpus chilensis mites. If a 

single live B. chilensis mite is found, the 

production site will not qualify for 

certification as a low-prevalence 

production site. Each production site 

may have only one opportunity per 

season to qualify as a low-prevalence 

production site, and certification of low 

prevalence will be valid for one harvest 

season only. The NPPO of Chile will 

present a list of certified production 

sites to APHIS. 

(c) Post-harvest processing. After 

harvest, all damaged or diseased fruits 

must be culled at the packinghouse and 

must be packed into new, clean boxes, 

crates, or other APHIS-approved 

packing containers. Each container must 

have a label identifying the registered 

production site where the fruit 

originated and the packing shed where 

it was packed. 

(d) Phytosanitary inspection. Fruit 

must be inspected in Chile at an APHISapproved inspection site under the 

direction of APHIS inspectors in 

coordination with the NPPO of Chile 

following any post-harvest processing. 

A biometric sample must be drawn and 

examined from each consignment. Baby 

kiwi in any consignment may be 

shipped to the continental United States 

under the conditions of this section only 

if the consignment passes inspection as 

follows: 

(1) Fruit presented for inspection 

must be identified in the shipping 

documents accompanying each lot of 

fruit to specify the production site or 

sites in which the fruit was produced 

and the packing shed or sheds in which 

the fruit was processed. This 

identification must be maintained until 


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Federal Register / Vol. 76, No. 206 / Tuesday, October 25, 2011 / Rules and Regulations 65935 

1To view the interim rule and the comment we 

received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2011-0005. 

the fruit is released for entry into the 

United States. 

(2) A biometric sample of the boxes, 

crates, or other APHIS-approved 

packing containers from each 

consignment will be selected by the 

NPPO of Chile, and the fruit from these 

boxes, crates, or other APHIS-approved 

packing containers will be visually 

inspected for quarantine pests. A 

portion of the fruit must be washed with 

soapy water and the collected filtrate 

must be microscopically examined for 

B. chilensis. If a single live B. chilensis 

mite is found during the inspection 

process, the certified low-prevalence 

production site where the fruit was 

grown will lose its certification. 

(e) Phytosanitary certificate. Each 

consignment of fresh baby kiwi must be 

accompanied by a phytosanitary 

certificate issued by the NPPO of Chile 

that contains an additional declaration 

stating that the fruit in the consignment 

was inspected and found free of 

Brevipalpus chilensis and was grown, 

packed, and shipped in accordance with 

the requirements of 7 CFR 319.56–53. 

(Approved by the Office of Management and 

Budget under control number 0579–0374) 

Done in Washington, DC, this 19th day of 

October 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–27577 Filed 10–24–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 56 

[Docket No. APHIS–2009–0031] 

RIN 0579–AD21 

National Poultry Improvement Plan and 

Auxiliary Provisions; Correction 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Correcting amendment. 

SUMMARY: In a final rule that was 

published in the Federal Register on 

March 22, 2011, and effective on April 

21, 2011, we amended the regulations 

for the control of H5/H7 low pathogenic 

avian influenza to simplify the list of 

types of poultry eligible for 100 percent 

indemnity, among other changes. This 

document corrects an error in our 

amendatory instructions accomplishing 

that change. 

DATES: Effective Date: October 25, 2011. 

FOR FURTHER INFORMATION CONTACT: Dr. 

C. Stephen Roney, DVM, Senior Staff 

Officer, NPIP, VS, APHIS, USDA, 1506 

Klondike Road, Suite 300, Conyers, GA 

30094–5104; (770) 922–3496. 

SUPPLEMENTARY INFORMATION: 

Background 

In a final rule that was published in 

the Federal Register on March 22, 2011 

(76 FR 15791–15798, Docket No. 

APHIS–2009–0031), and effective on 

April 21, 2011, we amended the 

National Poultry Improvement Plan (the 

Plan) and its auxiliary provisions by 

providing new or modified sampling 

and testing procedures for Plan 

participants and participating flocks. 

We also amended the regulations in 9 

CFR part 56, which set out conditions 

for the payment of indemnity for costs 

associated with poultry that are infected 

with or exposed to the H5 or H7 

subtypes of low pathogenic avian 

influenza. 

In § 56.3, we simplified the list of 

types of poultry eligible for 100 percent 

indemnity in paragraph (b) by replacing 

former paragraphs (b)(1) through (b)(6) 

with new paragraphs (b)(1) and (b)(2) 

and redesignating former paragraph 

(b)(7) as paragraph (b)(3). However, our 

amendatory instructions for 

accomplishing this change neglected to 

remove former paragraph (b)(3), 

resulting in the presence of two 

paragraphs designated (b)(3) in the Code 

of Federal Regulations. This document 

corrects that error. 

List of Subjects in 9 CFR Part 56 

Animal diseases, Indemnity 

payments, Low pathogenic avian 

influenza, Poultry. 

Accordingly, we are amending 9 CFR 

part 56 as follows: 

PART 56—CONTROL OF H5/H7 LOW 

PATHOGENIC AVIAN INFLUENZA 

■ 1. The authority citation for part 56 

continues to read as follows: 

Authority: 7 U.S.C. 8301–8317; 7 CFR 

2.22, 2.80, and 371.4. 

§ 56.3 [Amended] 

■ 2. In § 56.3, the first paragraph (b)(3) 

is removed. 

Done in Washington, DC, this 19th day of 

October 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–27579 Filed 10–24–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 78 

[Docket No. APHIS–2011–0005] 

Brucellosis in Swine; Add Texas to List 

of Validated Brucellosis-Free States 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Affirmation of interim rule as 

final rule. 

SUMMARY: We are adopting as a final 

rule, without change, an interim rule 

that amended the brucellosis regulations 

concerning the interstate movement of 

swine by adding Texas to the list of 

validated brucellosis-free States. The 

interim rule was necessary to relieve 

certain restrictions on interstate 

movement of breeding swine from 

Texas. 

DATES: Effective on October 25, 2011, 

we are adopting as a final rule the 

interim rule published at 76 FR 28885– 

28886 on May 19, 2011. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Troy Bigelow, Swine Health Programs, 

Aquaculture, Swine, Equine, and 

Poultry Programs, National Center for 

Animal Health Programs, VS, APHIS, 

210 Walnut Street Room 891, Des 

Moines, IA 50309; (515) 284–4121. 

SUPPLEMENTARY INFORMATION: 

Background 

Brucellosis is a contagious disease 

caused by bacteria of the genus Brucella. 

The disease mainly affects cattle, bison, 

and swine, but goats, sheep, horses, and 

even humans are susceptible. In its 

principal animal hosts, it causes loss of 

young through spontaneous abortion or 

birth of weak offspring, reduced milk 

production, and infertility. There is no 

economically feasible treatment for 

brucellosis in livestock. In humans, 

brucellosis initially causes flu-like 

symptoms, but the disease may develop 

into a variety of chronic conditions, 

including arthritis. Humans can be 

treated for brucellosis with antibiotics. 

In an interim rule 1 effective and 

published in the Federal Register on 

May 19, 2011 (76 FR 28885–28886, 

Docket No. APHIS–2011–0005), we 

amended the brucellosis regulations in 

9 CFR part 78 by adding Texas to the list 

of validated brucellosis-free States in 

§ 78.43. That action relieved certain 


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