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###### Department of Agriculture

###### Animal and Plant Health Inspection Service

          - [Docket No. APHIS-2009-0097]

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Notice.

# SUMMARY:

We are advising the public of our decision to begin issuing permits for the importation into the continental United States of fresh pomegranates and fresh baby kiwi from Chile. Based on the findings of pest risk analyses, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of fresh pomegranates and fresh baby kiwi from Chile.

# EFFECTIVE DATE:

May 12, 2010.

# FOR FURTHER INFORMATION CONTACT:

For information concerning pomegranates from Chile, contact Mr. Tony Román, Regulatory Policy Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-5820.

For information concerning baby kiwi fruit from Chile, contact Mr. David B. Lamb, Import Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-0627.

# SUPPLEMENTARY INFORMATION:

Under the regulations in ‘‘Subpart-Fruits and Vegetables’’ (7 CFR 319.56 through 319.56-50, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture 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.

                    Section 319.56-4 of the regulations contains a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph (b) of that section. Under that process, APHIS publishes a notice in the                     **Federal Register**                     announcing the availability of the pest risk analysis that evaluates the risks associated with the importation of a particular fruit or vegetable. Following the close of the 60-day comment period, APHIS may begin issuing permits for importation of the fruit or vegetable subject to the identified designated measures if: (1) No comments were received on the pest risk analysis; (2) the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or (3) changes to the pest risk analysis were made in response to public comments, but the changes did not affect the overall conclusions of the analysis and the Administrator’s determination of risk.                

                    In accordance with that process, we published a notice1                     in the                     **Federal Register**                     on February 9, 2010 (75 FR 6344-6345, Docket No. APHIS-2009-0097), in which we announced the availability, for review and comment, of two pest risk analyses that evaluate the                           ( print page 26708)                        risks associated with the importation into the continental United States of fresh figs, pomegranates, and baby kiwi fruit from Chile. We solicited comments on the notice for 60 days ending on April 12, 2010. We received 25 comments by that date, from port terminal operators, growers’ associations, trade associations, a fumigation service, a State agriculture department, a foreign Government agency, a foreign trade association, and several produce importers, exporters, and wholesalers. Most of the commenters agreed that the mitigation measures described in the pest risk analysis would be adequate. However, three commenters raised concerns about the pest risk analyses or proposed mitigation measures. These concerns are discussed below.                

One commenter raised several concerns regarding the risks associated with the importation of fresh figs from Chile. In order to give ourselves adequate time to explore the issues raised by the commenter, we are delaying our decision on figs and will address only pomegranates and baby kiwi from Chile in this notice. Our decision with respect to fresh figs from Chile will be announced in a later notice.

Two commenters stated that APHIS should conduct assessments at regular intervals to ensure that Chilean pomegranates remain safe from the Mediterranean fruit fly (Medfly).

                    APHIS does not believe that this is necessary. We currently recognize all of Chile, with the exceptions of the provinces of Arica and Parinacota, as free of Medfly. Furthermore, on February 1, 2010, we published a notice in the                     **Federal Register**                     (75 FR 5034-5035, Docket No. APHIS-2009-0082) in which we announced our determination that Arica and Parinacota Provinces are free from Medfly and solicited comments on that determination. We received only supportive comments on this announcement and intend to proceed with a followup notice formalizing this determination. This will result in all of Chile being recognized as a pest-free area for Medfly. Until the decision is implemented, APHIS will allow export of pomegranates only from areas of Chile currently recognized as free of Medfly. Commercial consignments must have a phytosanitary certificate with an additional declaration stating that the fruit comes from an area found free of Medfly.                

                    The same commenter endorsed the use of methyl bromide as a treatment to mitigate the risks associated with the Chilean false red mite (                    *Brevipalpis chilensis*) but went on to suggest that APHIS develop a quarantine program that could be implemented in the event that pest should enter the United States.                

APHIS does not believe it is necessary to develop a quarantine program as a precautionary measure. APHIS has established protocols that we use to guide our response to incursions of new plant pests.

One commenter questioned whether our estimate of the number of hectares of pomegranate production in Chile was accurate. The commenter stated that U.S. pomegranate growers had observed larger areas under cultivation than were estimated in our pest risk analysis.

In our pest risk analysis, we stated that Chile had 150 hectares of pomegranate cultivation in zones III and IV, that is, in Atacama and Coquimbo provinces, in 2007. According to the Association of Chilean Exporters, Chile currently has 300 hectares of pomegranates in production at present. It is possible that Chile has a greater number of hectares under cultivation, but that some of those orchards are not yet mature and thus are not considered to be in production.

Therefore, in accordance with the regulations in § 319.56-4(c)(2)(ii), we are announcing our decision to begin issuing permits for the importation into the continental United States of fresh pomegranates and baby kiwi from Chile subject to the following phytosanitary measures:
    - Each shipment of pomegranates or baby kiwi must be accompanied by a phytosanitary certificate. For shipments of pomegranates, the phytosanitary certificate must also bear the following additional declaration: “The pomegranates in this consignment originated in an area free of Mediterranean fruit fly ( Ceratitis capitata ).” The phytosanitary certificate or phytosanitary certificate with additional declaration must be issued by the national plant protection organization of Chile.                
    - The shipment must be fumigated with methyl bromide using treatment schedule T-101-i-2-1 in accordance with 7 CFR part 305 .
    - The pomegranates or baby kiwi must be a commercial consignment as defined in 7 CFR 319.56-2 .

                    These conditions will be listed in the Fruits and Vegetables Import Requirements database (available at (                    *http://www.aphis.usda.gov/​favir)*) . In addition to those specific measures, the fresh pomegranates and baby kiwi will be subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables.                

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.

                    Done in Washington, DC, this 10th                     day of May, 2010.                

Kevin Shea

Acting Administrator, Animal and Plant Health Inspection Service.

# Footnotes

1.                             To view the notice and the comments we received, go to (                        *http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS-2009-0097*).                    
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[FR Doc. 2010-11438 Filed 5-12-10; 7:26 am]

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