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

26511 

Vol. 74, No. 105 

Wednesday, June 3, 2009 

1To view the proposed rule and the comments 

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

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2007-0153. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 319 

[Docket No. APHIS–2007–0153] 

RIN 0579–AC88 

Importation of Eggplant From Israel 

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 commercial consignments of 

fresh eggplant from Israel. As a 

condition of entry, the eggplant must be 

grown under a systems approach that 

includes requirements for pest 

exclusion at the production site, fruit fly 

trapping inside and outside the 

production site, and pest-excluding 

packinghouse procedures. The eggplant 

must be accompanied by a 

phytosanitary certificate issued by the 

Israeli national plant protection 

organization with an additional 

declaration confirming that the 

eggplants have been produced in 

accordance with those requirements. 

This action will allow for the 

importation of commercial 

consignments of fresh eggplant from 

Israel into the United States while 

continuing to provide protection against 

the introduction of quarantine pests. 

DATES: Effective Date: July 6, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Donna L. West, Senior 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 319.56–48, 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. 

On November 12, 2008, we published 

in the Federal Register (73 FR 66807– 

66811, Docket No. APHIS–2007–0153) a 

proposal 1 to allow the importation into 

the continental United States of 

commercial consignments of fresh 

eggplant from Israel if they were 

produced in accordance with a systems 

approach. The proposed systems 

approach included the following 

measures: 

• Growing the eggplant in pestexclusionary structures; 

• Trapping both inside and outside 

the pest-exclusionary structures for 

Ceratitis capitata (Mediterranean fruit 

fly, or Medfly); 

• Packinghouse procedures designed 

to exclude quarantine pests. 

In addition, we proposed to require 

all consignments of eggplant from Israel 

to be accompanied by a phytosanitary 

certificate with a declaration stating that 

the eggplant had been produced in 

accordance with the proposed 

requirements. 

We solicited comments concerning 

our proposal for 60 days, ending January 

12, 2009. We received three comments 

by that date. They were from private 

citizens and the Israeli national plant 

protection organization (NPPO). They 

are discussed below. 

One commenter expressed concern 

that the quarantine pests associated 

with eggplant from Israel may be a 

serious health threat to Americans. 

The commenter provided no specific 

information regarding the health risk 

posed by these pests. We have 

determined that these pests pose no 

human health risk. 

We proposed to require that any vents 

or openings in the pest-exclusionary 

structures (other than the double selfclosing doors) be covered with 1.6 mm 

or smaller screening in order to prevent 

the entry of pests into the pestexclusionary structure. One commenter 

expressed concern that one quarantine 

pest identified in the pest risk analysis 

(PRA) prepared for the proposed rule, 

Scirtothrips dorsalis, may be small 

enough to pass through the 1.6 mm 

screening and stated that the structures 

should completely exclude S. dorsalis. 

This commenter also questioned 

whether inspection would be an 

effective mitigation for S. dorsalis, 

noting its small size. 

As noted in the proposed rule, the 

thrips species is at least partially 

discouraged by the physical barrier of 

the 1.6 mm mesh. Also, thrips are 

external feeders and would most likely 

be detected during inspection of the 

pest-exclusionary structures. Under the 

final rule, pest-exclusionary structures 

will be inspected monthly for the six 

quarantine pests beginning 2 months 

before harvest and continuing for the 

duration of the harvest, and each 

consignment of eggplant will be 

inspected for all quarantine pests, 

including S. dorsalis, by the Israeli 

NPPO. These inspections are completed 

by trained inspectors who are looking 

for these quarantine pests specifically. 

Based on our experience inspecting for 

S. dorsalis and other external feeders, 

we have determined that inspection will 

be an effective mitigation against S. 

dorsalis in eggplant from Israel. 

One commenter stated that the 

proposed rule incorporated preventative 

measures to prevent pest infestation, but 

did not include very many secondary 

checks for pests. 

As noted earlier, the systems 

approach includes inspections to verify 

freedom from quarantine pests at 

multiple points during the production 

process. These inspections begin 2 

months before harvest and continue 

throughout the entire shipping process. 

We proposed to require trapping for 

Medfly in the agricultural region along 

the Arava Highway 90 and in the 

residential area of Paran. One 

commenter stated that trapping for 

Medfly is carried out in all agricultural 

regions in the Arava as well as in all the 

residential areas, including Paran. 

This trapping is consistent with our 

proposed requirements, and an 

expansion of the trapping area will not 

affect the trapping requirements that we 

included in the proposed rule. 

One commenter addressed supporting 

documents provided with the proposal. 


dwashington3 on PROD1PC60 with RULES
26512 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

For example, the risk management 

document (RMD) discussed the use of 

McPhail traps for trapping Medfly. The 

commenter stated that Israel currently 

uses Tephri traps. 

While the RMD specifically referred 

to McPhail traps, we proposed to allow 

any APHIS-approved traps to be used in 

the trapping for Medfly. The Tephri 

trap, which is a modified McPhail trap, 

is approved for use by APHIS under this 

final rule. 

The RMD referred to ‘‘fruit fly 

material’’ not being permitted within 50 

meters of the entry door of the 

packinghouse. This commenter 

requested further clarification on the 

term ‘‘fruit fly material.’’ 

This refers to any organic material 

that could become host material for the 

fruit fly. The proposed rule correctly 

referred to ‘‘fruit fly host material.’’ The 

omission of the word ‘‘host’’ in the RMD 

was a typographical error. 

The PRA referred to Israel using 

Malathion bait to control fruit fly 

populations. The commenter stated that 

the Israeli NPPO currently uses a sterile 

insect treatment program. 

This program is complementary to the 

Malathion bait spray. No changes to the 

proposed rule are necessary in response 

to this comment. 

One commenter stated that it would 

take decades for Israeli eggplant growers 

to make a profit under the proposed 

regulations and that the benefit to Israeli 

growers is small compared to the risk 

the United States is taking on by 

importing eggplant. 

In accordance with the Plant 

Protection Act (7 U.S.C. 7701 et seq.), 

we base our decisions to allow the 

importation of fruits and vegetables on 

whether the risk associated with their 

importation can be successfully 

mitigated, not on economic issues such 

as whether exporting eggplant is a 

profit-making venture for farmers in 

Israel. The systems approach we 

proposed will effectively mitigate the 

pest risk associated with the 

importation of eggplant from Israel. 

One commenter asked how importing 

eggplant from Israel would affect the 

U.S. relationship with current trading 

partners in eggplant (specifically China 

and India). 

The economic analysis in the 

proposed rule reported that China and 

India are world leaders in the 

production of eggplant, and it appears 

that the commenter took that to mean 

that the United States imports eggplant 

from those countries, which is not the 

case. The importation into the United 

States of eggplant from China and India 

is not currently authorized. That being 

said, we do not expect that allowing the 

importation of eggplant from Israel will 

negatively affect our trading 

relationships with any of the countries 

that currently export eggplant to the 

United States, as Israel is a small 

exporter of eggplant. In 2006, Israel’s 

exports of commercial shipments were 

valued at only $20,000. This value is 

only 0.05 percent of the value of U.S. 

eggplant imports in 2006. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, without change. 

Note: In our November 2008 proposed rule, 

we proposed to add the conditions governing 

the importation of eggplant from Israel as 

§ 319.56–48. In this final rule, those 

conditions are added as § 319.56–49. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been reviewed under 

Executive Order 12866. The 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. 

We are amending the fruits and 

vegetables regulations to allow the 

importation into the continental United 

States of eggplant from Israel under 

certain conditions. As a condition of 

entry, the eggplant must be grown under 

a systems approach that will include 

requirements for pest exclusion at the 

production site, fruit fly trapping inside 

and outside the production site, and 

pest-excluding packinghouse 

procedures. The eggplant must be 

accompanied by a phytosanitary 

certificate issued by the Israeli NPPO 

with an additional declaration 

confirming that the eggplant have been 

produced in accordance with those 

requirements. This action will allow for 

the importation of commercial 

consignments of fresh eggplant from 

Israel into the United States while 

continuing to provide protection against 

the introduction of quarantine pests. 

Eggplant, which is native to India and 

Pakistan, is a warm-season crop that is 

sensitive to cool temperatures. World 

production of eggplant is highly 

concentrated, with 83 percent of output 

by the top two producers, China (55 

percent) and India (28 percent), and 

with the United States a distant 20th in 

production. 

According to the 2002 Census of 

Agriculture, there were 50,000 farms in 

47 States that may produce, among 

other vegetables, some eggplant, but 

only about 4 percent of the 50,000 farms 

reported harvesting eggplant. In all, 

about 7,000 acres are devoted to 

eggplant production in the United 

States, with 72 percent of eggplant 

production taking place in 11 counties 

in 4 States: California, Florida, Georgia, 

and New Jersey (table 1). In addition, 63 

percent of the number of acres planted 

in eggplant in the United States are in 

these four States. Production at a much 

lower level takes place in other States 

including Hawaii, Michigan, and New 

York. 

TABLE 1—2006 STATE-LEVEL PRODUCTION OF EGGPLANTS IN THE UNITED STATES

States/counties 

Eggplant 

production 

(metric tons) 

Number of acres 

planted with 

eggplant 

California (Fresno and Riverside) .................................................................................................................... 17,690.11 1,364 

Florida (Palm Beach, Hillsborough, Dade) ...................................................................................................... 15,875.74 1,174 

Georgia (Colquitt, Echols, Lowndes) ............................................................................................................... 14,870.75 1,100 

New Jersey (Gloucester, Cumberland, Atlantic) ............................................................................................. 11,748.05 800 

Sum of 4 States ............................................................................................................................................... * 60,184.65 ** 4,438 

United States ................................................................................................................................................... 83,914.61 7,000 

Source: United States Department of Agriculture (USDA), Economic Research Service (ERS), Vegetables and Melons Situation and Outlook 

Yearbook, December 2006; U.S. Census of Agriculture, 2002. 

* (72% of production.) 

** (63% of planted area.) 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26513 

2USDA, ERS, Vegetables and Melons Outlook/ 

VGS–318/December 14, 2006 (pages 23–27). 

3On average, during 2004–06, the winter season 

(January–March) accounted for 55 percent of U.S. 

eggplant imports; the spring season (April–June) 

accounted for 20 percent; the summer season (July– 

September) accounted for 5 percent; and, the fall 

season (October–December) accounted for 31 

percent. 

Despite a per-capita consumption rate 

of less than 1 pound, the United States 

is the leading importer of eggplant in 

the world, accounting for 20 percent of 

world eggplant import volume.2 The 

next largest eggplant importers are 

France with 15 percent, Syria with 12 

percent, Germany with 11 percent, and 

Canada with 9 percent of world eggplant 

import volume. These 5 countries 

account for 67 percent of world eggplant 

imports. The remaining 33 percent of 

world eggplant imports is divided 

among the rest of the world. Between 

2004 and 2006, the United States 

imported on average $45 million worth 

of eggplant (table 2). 

Most U.S. eggplant imports enter 

during the cooler months of the year. 

Florida is the only domestic shipper 

during the winter.3

TABLE 2—U.S. TRADE OF FRESH EGGPLANTS, 2004–2006 

U.S. imports U.S. exports Net imports 

(Value in thousand dollars) ........................

2004 ............................................................................................................................................. $49,028 $8,148 $40,880 

2005 ............................................................................................................................................. $45,981 $8,735 $37,246 

2006 ............................................................................................................................................. $39,986 $8,943 $31,043 

................................................................................................................................................. (Quantities in metric tons) ........................

2004 ............................................................................................................................................. 49,768.4 9,669.1 40,099.3 

2005 ............................................................................................................................................. 54,096.8 9,660.5 44,436.3 

2006 ............................................................................................................................................. 49,065.0 9,626.2 39,438.8 

Source: U.S. Department of Commerce, Bureau of Census, as reported by Global Trade Information Services. Note: Based on the Harmonized 

Schedules 070930. 

Impact on Small Entities 

U.S. entities that could be affected by 

this rule are domestic producers of fresh 

eggplant and wholesalers that import 

fresh eggplant. Businesses producing 

fresh eggplant are classified in the North 

American Industry Classification 

System (NAICS) within the category of 

other vegetable (except potato) and 

melon farming (NAICS 111219). The 

Small Business Administration’s (SBA) 

small-entity standard for this category is 

$750,000 or less in annual receipts. 

While available data do not provide the 

number of U.S. eggplant-producing 

entities or information on the size 

distribution of U.S. eggplant-producing 

entities, it is reasonable to assume that 

the majority of the operations are small 

by SBA standards, based on the fact that 

the average vegetable farm is small. 

Israel is a small exporter of eggplant. 

For example, in 2006 Israel’s exports of 

commercial shipments of fresh eggplant 

were valued at only $20,000. This value 

is only 0.05 percent of the value of U.S. 

eggplant imports in 2006 (nearly $40 

million). In other words, even if all of 

Israel’s 2006 worldwide eggplant 

exports are diverted entirely to the 

United States, they will represent a 

negligible share of total U.S. imports 

and an even smaller share of the U.S. 

eggplant supply. 

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 eggplant to be 

imported into the United States from 

Israel. State and local laws and 

regulations regarding eggplant imported 

under this rule will be preempted while 

the fruit is in foreign commerce. Fresh 

vegetables 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-bycase 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 

0579–0350. 

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 

citizens’ 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 § 319.56–49 is added to read 

as follows: 

§ 319.56–49 Eggplant from Israel. 

Eggplant (Solanum melongena L.) 

may be imported into the continental 

United States from Israel only under the 

conditions described in this section. 

These conditions are designed to 

prevent the introduction of the 

following quarantine pests: Ceratitis 

capitata, Eutetranychus orientalis, 

Helicoverpa armigera, Nipaecoccus 


dwashington3 on PROD1PC60 with RULES
26514 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

viridis, Scirtothrips dorsalis, and 

Spodoptera littoralis. 

(a) Approved pest-exclusionary 

structures. The eggplant must be grown 

in pest-exclusionary structures in 

approved production sites in the Arava 

Valley of Israel by growers registered 

with the Israeli national plant protection 

organization (NPPO). Initial approval of 

the production sites must be completed 

jointly by the Israeli NPPO and APHIS. 

(1) The pest-exclusionary structures 

must be equipped with double selfclosing doors. 

(2) Any vents or openings in the pestexclusionary structures (other than the 

double self-closing doors) must be 

covered with 1.6 mm or smaller 

screening in order to prevent the entry 

of pests into the pest-exclusionary 

structure. 

(3) The pest-exclusionary structures 

must be inspected periodically by the 

Israeli NPPO or its approved designee to 

ensure that sanitary procedures are 

employed to exclude plant pests and 

diseases and to verify that the screening 

is intact. 

(4) The pest-exclusionary structures 

also must be inspected monthly for the 

quarantine pests listed in the 

introductory text of this section by the 

Israeli NPPO or its approved designee, 

beginning 2 months before harvest and 

continuing for the duration of the 

harvest. APHIS must be granted access 

to inspect or monitor the pestexclusionary structures during this 

period as well. If, during these 

inspections, any quarantine pests listed 

in the introductory text of this section 

are found inside a pest-exclusionary 

structure, the Israeli NPPO will 

immediately prohibit that pestexclusionary structure from exporting 

eggplant to the continental United 

States and notify APHIS of the action. 

The prohibition will remain in effect 

until the Israeli NPPO and APHIS agree 

that the risk has been mitigated. 

(b) Trapping for Medfly. Trapping for 

Mediterranean fruit fly (Medfly, 

Ceratitis capitata) is required both 

inside and outside the pest-exclusionary 

structures. Trapping must begin 2 

months before harvest and continue for 

the duration of the harvest. 

(1) Inside the pest-exclusionary 

structures. APHIS-approved fruit fly 

traps with an approved protein bait 

must be placed inside the pestexclusionary structures at a density of 

four traps per hectare, with a minimum 

of at least two traps per pestexclusionary structure. The traps must 

be serviced at least once every 7 days. 

If a single Medfly is found in a trap 

inside a pest-exclusionary structure, the 

Israeli NPPO will immediately prohibit 

that pest-exclusionary structure from 

exporting eggplant to the continental 

United States and notify APHIS of the 

action. The prohibition will remain in 

effect until the Israeli NPPO and APHIS 

agree that the risk has been mitigated. 

(2) Outside the pest-exclusionary 

structures. (i) No shade trees are 

permitted within 10 meters of the entry 

door of the pest-exclusionary structures, 

and no fruit fly host plants are 

permitted within 50 meters of the entry 

door of the pest-exclusionary structures. 

While trapping is being conducted, no 

fruit fly host material (such as fruit) may 

be brought into the pest-exclusionary 

structures or be discarded within 50 

meters of the entry door of the pestexclusionary structures. 

(ii) A treatment jointly approved by 

the Israeli NPPO and APHIS must be 

applied for the duration of the eggplant 

harvest in the areas of the Arava Valley 

where fruit fly host material occurs in 

backyards. 

(iii) Trapping for Medfly must be 

conducted by the Israeli NPPO or its 

approved designee throughout the year 

in the agricultural region along the 

Arava Highway 90 and in the residential 

area of Paran. 

(iv) Trapping records must be kept 

and made available for APHIS review 

upon request. 

(c) Packinghouse procedures. The 

eggplant must be packed within 24 

hours of harvest in a pest-exclusionary 

packinghouse. While packing the 

eggplant for export to the continental 

United States, the packinghouse may 

only accept eggplant from approved 

pest-exclusionary structures. No shade 

trees are permitted within 10 meters of 

the entry door of the packinghouse, and 

no fruit fly host plants are permitted 

within 50 meters of the entry door of the 

packinghouse. The eggplant must be 

safeguarded by a pest-proof screen or 

plastic tarpaulin while in transit to the 

packinghouse and while awaiting 

packing. Packinghouse procedures must 

include culling of any visibly damaged, 

overripe, or infested eggplant. The 

eggplant must be packed in either 

individual insect-proof cartons or boxes 

labeled with the specific place of origin 

or non-insect-proof cartons or boxes that 

are covered by insect-proof mesh or 

plastic tarpaulins. Covered non-insectproof cartons or boxes must be placed 

in shipping containers that have 

identification labels indicating the 

specific place of origin. These 

safeguards must remain intact until the 

arrival of the eggplant in the continental 

United States or the consignment will 

not be allowed to enter the continental 

United States. 

(d) Commercial consignments. 

Eggplant from Israel may be imported in 

commercial consignments only. 

(e) Phytosanitary certificate. Each 

consignment of eggplant must be 

accompanied by a phytosanitary 

certificate of inspection issued by the 

Israeli NPPO with an additional 

declaration reading as follows: ‘‘The 

eggplant in this consignment has been 

grown in an approved production site 

and inspected and found free of the 

pests listed in 7 CFR 319.56–49.’’ 

(Approved by the Office of Management and 

Budget under control number 0579–0350) 

Done in Washington, DC, this 28th day of 

May 2009. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. E9–12929 Filed 6–2–09; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

[DHS No. ICEB–2008–0002; ICE No. 2124– 

08] 

RIN 1653–AA56 

Extending Period of Optional Practical 

Training by 17 Months for F–1 

Nonimmigrant Students With STEM 

Degrees and Expanding Cap-Gap 

Relief for All F–1 Students With 

Pending H–1B Petitions; Correction 

AGENCY: U.S. Immigration and Customs 

Enforcement, U.S. Citizenship and 

Immigration Services; DHS. 

ACTION: Interim final rule; correction. 

SUMMARY: With this amendment, the 

Department of Homeland Security 

(DHS) corrects one typographical error 

and corrects two inadvertent omissions 

from the Optional Practical Training 

(OPT) interim final rule (IFR) published 

in the Federal Register on April 8, 2008. 

DATES: Effective June 3, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Louis Farrell, Director, Student and 

Exchange Visitor Program; U.S. 

Immigration and Customs Enforcement, 

Department of Homeland Security; 

Potomac Center North, 500 12th Street, 

SW., Washington, DC 20536. 

SUPPLEMENTARY INFORMATION: 

Need for Correction 

On April 8, 2008, the Department of 

Homeland Security (DHS) published an 

interim final rule in the Federal 

Register at 73 FR 18944 extending the 

maximum period of Optional Practical 


dwashington3 on PROD1PC60 with RULES