Changes to Reporting Requirements-Vegetable and Specialty Crop Import Regulations; and Other Clarifying Changes-Fruit, Vegetable, and Specialty Crop Import Regulations
| Published date | 06 March 2020 |
| Citation | 85 FR 12985 |
| Record Number | 2020-03895 |
| Section | Rules and Regulations |
| Court | Agricultural Marketing Service |
Federal Register, Volume 85 Issue 45 (Friday, March 6, 2020)
[Federal Register Volume 85, Number 45 (Friday, March 6, 2020)]
[Rules and Regulations]
[Pages 12985-12996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03895]
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Rules and Regulations
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 85, No. 45 / Friday, March 6, 2020 / Rules
and Regulations
[[Page 12985]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 944, 980, and 999
[Doc. No. AMS-SC-16-0064; SC16-980-1 FR]
RIN 0581-AD68
Changes to Reporting Requirements--Vegetable and Specialty Crop
Import Regulations; and Other Clarifying Changes--Fruit, Vegetable, and
Specialty Crop Import Regulations
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule changes the reporting requirements for certain
Irish potatoes, tomatoes, and onions regulated under section 608e of
the Agricultural Marketing Agreement Act of 1937, as amended (section
8e). With this change, importers of those regulated commodities that
have been certified by a designated governmental inspection service
other than the Federal or Federal-State Inspection Service as meeting
section 8e requirements will be required to provide the inspection
certificate number and a copy of the certificate to the Agricultural
Marketing Service (AMS) (currently, the Canadian Food Inspection Agency
is the only entity so designated). In addition, this rule changes the
pistachio import regulations to provide for the electronic filing of
aflatoxin test results and to eliminate a requirement to report the
disposition of reworked or failed lots of pistachios. This rule also
changes several of the section 8e regulations by removing or replacing
outdated information.
DATES: Effective September 2, 2020.
FOR FURTHER INFORMATION CONTACT: Vincent Fusaro, Compliance and
Enforcement Branch Chief, Specialty Crops Program, AMS, USDA;
Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
[email protected].
Small businesses may request information on complying with this
regulation by contacting Richard Lower, Marketing Order and Agreement
Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue
SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491,
Fax: (202) 720-8938, or Email: [email protected].
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of the Final Rule
This final rule streamlines and automates import entry and
reporting processes for the import trade as well as USDA and USDA-
accredited laboratories. These changes support the International Trade
Data System (ITDS) initiative and will reduce the burden on the import
industry while also enhancing AMS' ability to ensure compliance with
its import regulations. In addition, this rule allows AMS to meet a
U.S. Customs and Border Protection (CBP) requirement that all
government agencies participating in the ITDS project update their
regulations to provide for the electronic entry of import information.
This rule also ensures that the import trade has access to accurate and
up-to-date information in AMS' import regulations.
Legal Authority for the Final Rule
This final rule is issued under section 8e of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.'' Section 8e provides that
whenever certain commodities are regulated under Federal marketing
orders, imports of those commodities into the United States are
prohibited unless they meet the same or comparable grade, size,
quality, and/or maturity requirements as those in effect for the
domestically-produced commodities. The Act also authorizes the U.S.
Department of Agriculture (USDA) to perform inspections on those
imported commodities and to certify whether those requirements have
been met.
Parts 944, 980, and 999 of title 7 of the Code of Federal
Regulations (CFR) specify inspection, certification, and reporting
requirements for imported commodities regulated under section 8e,
including the governmental inspection services that are authorized to
perform certification.
There are no administrative procedures that must be exhausted prior
to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
Summary of the Provisions of the Final Rule
This final rule:
1. Requires importers of certain Irish potatoes, tomatoes, and
onions regulated under section 8e that have been certified by the
Canadian Food Inspection Agency to electronically provide the
inspection certificate number and a copy of the certificate to AMS. If
unable to submit electronically, importers must submit the certificate
via email, mail, or facsimile.
2. Changes the method of reporting aflatoxin test results from USDA
and USDA-accredited laboratories to AMS by converting a paper form to
an electronic format and expanding the reporting requirements for the
laboratories to reflect the laboratories' current practice of reporting
all test results instead of only failed test results.
3. Eliminates the requirement that importers of pistachios report
the disposition of reworked or failed lots of pistachios to AMS.
4. Makes other miscellaneous changes to AMS' import regulations,
including updating the agency and program names and contact
information, and removing or updating other information that is out of
date.
Costs and Benefits
To the extent that this rule will increase efficiency and cost
savings, it would benefit importers. Revising the reporting
requirements will streamline the regulations and reduce the burden on
the trade. The other changes finalized in this action will provide the
import trade with accurate information.
Executive Orders 13563, 13175, 13771, 12866, and 12988
USDA is issuing this final rule in conformance with Executive
Orders 13563, 13175, 12866, and 13771. See OMB's Memorandum M-17-21 of
April 5, 2017, containing guidance for implementing Executive Order
13771, titled `Reducing Regulation and Controlling Regulatory Costs'''
(February 2, 2017).
[[Page 12986]]
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect.
Background
This final rule revises the reporting requirements for certain
Irish potatoes, tomatoes, and onions regulated under part 980, the
vegetable import regulations. This rule requires importers of those
regulated commodities that have been certified by a designated
governmental inspection service other than the Federal or Federal-State
Inspection Service as meeting section 8e requirements to electronically
enter the inspection certificate number and upload an electronic copy
of the certificate to AMS. Currently, the Canadian Food Inspection
Agency (CFIA) is the only designated non-Federal/Federal-State
Inspection Service; therefore, references to the reporting requirement
in this rule will hereinafter be described as ``CFIA'' or ``Canadian''
inspection certificates and/or inspection information.
A proposed rule concerning this action was published in the Federal
Register on December 6, 2016 (81 FR 87849). The proposed rule was made
available through the internet by USDA and the Office of the Federal
Register. A 30-day comment period ending January 5, 2017, was provided
to allow interested persons to respond to the proposal. The import
industry, USDA laboratories, and USDA-accredited laboratories are aware
of ITDS and its goal to streamline processes. Members of the import
industry have attended annual ITDS Trade Support Network plenary
sessions conducted by the U.S. Government over the past few years. No
comments were received on the proposed rule.
While no comments were received on the proposed rule, USDA believes
that industry and laboratories would benefit from additional time to
adjust to the new electronic filing and reporting requirements;
accordingly, USDA is setting six months from the publication of this
final rule as the effective date for these changes.
In the event an importer is unable to enter the CFIA inspection
information electronically, he or she will be required to provide a
copy of the certificate to AMS via email, mail, or facsimile.
In addition, this rule changes two pistachio import reporting
requirements in Sec. 999.600 of the specialty crop import regulations:
The Imported Pistachios--Lot Notification report (form FV-249) and the
Imported Pistachios--Rework and Failed Lot Disposition report (form FV-
251). Both forms have been previously approved for use by OMB under OMB
No. 0581-0215, Pistachios Grown in California, Arizona, and New Mexico
(although these two forms are included in the OMB information
collection for the domestic pistachio marketing order, they are used
strictly for reporting related to imported pistachios). The pistachio
import regulations currently require that USDA or USDA-accredited
laboratories complete a form FV-249 for all lots of imported pistachios
that fail to meet aflatoxin requirements and submit the form to USDA,
the CBP, and the importer who requested the aflatoxin test. The
regulations also require that importers of pistachios complete and
submit form FV-251 to USDA and CBP for lots that fail to meet aflatoxin
requirements when the lots are reworked for further testing or, when
not reworked, are exported, sold for non-human consumption, or
destroyed.
With the implementation of this rule, USDA or USDA-accredited labs
will submit the form FV-249 electronically, reporting all aflatoxin
test results (both ``meets'' and ``fails'') to USDA. In March 2017, the
Office of Management and Budget (OMB) approved AMS' request to change
the FV-249 form number to SC-249 to reflect the current program name
(Specialty Crops), and references to the electronic form in this rule
will be to SC-249. AMS has confirmed with CBP that it does not need to
receive form SC-249, and importers already receive ``meets'' and
``fails'' test results from the laboratories in the form of aflatoxin
test certificates; therefore, the laboratories will electronically
submit this form only to USDA. Importers will no longer be required to
submit the form FV-251 because AMS has determined that information
provided on this form is available from other sources. At the same
time, AMS obtained OMB's approval for changes to the information
collection currently approved under OMB No. 0581-0215, including
removal of form FV-251 from the information collection. Providing for
electronic submission of the form SC-249 and removing the requirement
that importers submit the form FV-251 supports the ITDS initiative by
streamlining processes and reducing the burden on America's import
trade without compromising AMS' ability to ensure compliance with its
import regulations.
This rule makes other changes to the fruit, vegetable, and
specialty crop import regulations in Sec. Sec. 944.400, 944.401,
980.1, 980.117, 980.212, 999.1, 999.100, 999.300, and 999.400. These
changes, which include updating agency and program names and contact
information and removing or updating other information that is out of
date, will help ensure the import regulations contain accurate
information and align with the ITDS objective of streamlining import
processes for the trade.
This final rule does not remove any specific requirements related
to the physical inspection of potatoes, onions, or tomatoes, only the
manner in which inspection results are reported. All domestic and
imported potatoes, onions, and tomatoes must still be inspected to
ensure grade, quality and wholesomeness during the regulated period.
All domestic growers of these commodities are also still required to
register with the applicable marketing order committee or board. The
marketing order committees/boards will still verify that inspections
occur for domestically produced commodities. Importers are still
required to register each entry by filing with CBP's Automated
Commercial Environment (ACE). The AMS Marketing Order and Agreement
Division (MOAD) will then verify whether imported products have met
inspection requirements.
Certification by Canadian Food Inspection Agency (CFIA)
In part 980, the following sections prescribe the grade, size,
quality, and maturity requirements for imported vegetable commodities
that are regulated under section 8e: Sec. 980.1(b) for potatoes, Sec.
980.117(b) for onions, and Sec. 980.212(b) for tomatoes. Further, the
following sections in part 980 specify the governmental inspection
services that are designated to certify that grade, size, quality, and
maturity requirements of the commodities have been met: Sec. 980.1(f)
for potatoes, Sec. 980.117(e) for onions, and Sec. 980.212(e) for
tomatoes. Part 980 also specifies that an inspection certificate issued
by a designated government inspection service certifying that the
potatoes, onions, and tomatoes meet the import requirements is required
for all imports (Sec. Sec. 980.1(g), 980.117(f), and 980.212(f) for
potatoes, onions, and tomatoes, respectively.
As noted above, the vegetable import regulations specify those
domestic and foreign government inspection services that are designated
to certify that imported potatoes, onions, and tomatoes meet grade,
size, quality, and maturity requirements. Currently, the only foreign
designated governmental inspection service is CFIA.
When importers have potatoes, onions, or tomatoes inspected in
Canada prior to import into the United States, an inspection
certificate is provided to the importer that certifies that the
[[Page 12987]]
commodity meets section 8e import requirements. These certificates are
comprised of various formats, including a Certificate of Inspection for
Fresh Fruits and Vegetables--Shipping Point (also known as Form CFIA/
ACIA 5314 or E2 and E3 Certificates) and an Export Document for C-PIQ
Establishments--Fresh Fruits and Vegetables (also known as a C-PIQ
form). CFIA issues C-PIQ forms to C-PIQ establishments that meet the
requirements defined within the CFIA quality assurance program, known
as ``Canadian Partners in Quality'' (C-PIQ). Currently, the C-PIQ
program is only active for potatoes. All of these Canadian certificates
contain similar information as required by the AMS vegetable import
regulations, including the date of inspection, the name of the shipper,
the commodity inspected, the quantity of the commodity covered by the
certificate, and a statement indicating that the commodity meets the
import requirements of section 8e.
Currently, Canadian certificates that state that potatoes meet
section 8e requirements are presented to CBP at the United States/
Canada border, prior to entry into the United States. AMS conducts
periodic reviews at CFIA offices and potato handling facilities in
various Canadian provinces during which inspectors from AMS' Specialty
Crops Inspection (SCI) Division, as well as Compliance and Enforcement
Specialists from AMS' MOAD, observe inspection processes and review
records at traditional shipping points and maintained under the C-PIQ
program for potatoes exported from Canada to the United States.
However, importers have not been required to submit copies of the
Canadian E2, E3, or C-PIQ certificates or otherwise provide proof of
Canadian inspection to AMS.
Electronic Entry of Canadian Certificate Information in ACE
CBP's ACE is the primary system through which the global trade
community electronically files information about imports and exports so
that admissibility into the United States may be determined and
government agencies may monitor compliance. ACE is the platform that
provides a ``single window'' through which the global trade community
electronically files shipment data, instead of completing or submitting
paper-based forms to report the same information to different
government agencies. This ``single window'' concept is a key component
of ITDS, a system that is designed to reduce the burden on America's
import and export trade while still providing information to government
agencies that is necessary for the United States to ensure compliance
with its laws.
In conjunction with the full implementation of the ITDS ``single
window,'' CBP required that government agencies participating in the
ITDS project, including AMS, ensure that regulations provide for the
electronic entry of import and/or export information. This mandate was
instituted through the Border Interagency Executive Council's (BIEC)
effort to implement Executive Order 13659 and its governance structure
to ensure coordination. CBP shares ACE data with Partnering Government
Agencies (PGA) that have entered into a Memorandum of Understanding
(MOU) with CBP. ACE data sharing MOUs with PGAs define and limit the
scope and use of information shared pursuant to the PGA's respective
authorities.
AMS developed and in 2017 began deploying a new automated system
called the Compliance and Enforcement Management System (CEMS) that
interfaces with CBP's ACE system in support of ITDS. CEMS
electronically links with the ACE system to create a ``pipeline''
through which data are transmitted between MOAD and CBP. CEMS validates
information electronically entered by importers in ACE and transmits
messages to CBP about whether a shipment may be released for
importation into the United States.
AMS has determined that: (1) Requiring importers of potatoes,
tomatoes and onions to provide the inspection certificate number and a
copy of the certificate issued by the non-USDA inspection agency; and
(2) requiring the electronic filing of aflatoxin test results related
to imported pistachios and eliminating the requirement to report
disposition of reworked or failed lots of pistachios, as initially
proposed, meet CBP's requirements for ITDS by: (1) Providing for the
electronic entry in ACE of certification information for potatoes,
onions, and tomatoes inspected by CFIA prior to import into the United
States, and (2) providing for the electronic entry of aflatoxin test
results related to imported pistachios into ACE. Data will be
transmitted from CBP's ACE to AMS' CEMS, where it will be
electronically validated. Upon validation, CEMS will transmit an
electronic message back to ACE indicating the shipment is cleared for
import into the United States. The changes to the vegetable import
regulations will automate and streamline the entry and reporting
process for importers while enhancing AMS' ability to ensure compliance
with its import regulations.
These changes will also provide an option for importers to provide
AMS with a paper copy of a CFIA certificate, via email, mail, or
facsimile, in the event an importer is unable to electronically provide
the required certificate number and image in ACE.
Imported Pistachio Regulation Reporting Changes
The pistachio import regulations provide that each pistachio sample
drawn and prepared for aflatoxin testing by a USDA-authorized inspector
be submitted to a USDA or USDA-accredited laboratory for analysis
(Sec. 999.600(e)). Aflatoxins are a family of toxins producers by
certain fungi that are found on agricultural products, including tree
nuts. Aflatoxins are poisonous carcinogens. Lots that fail to meet the
aflatoxin requirements currently must be reported by the laboratories
to USDA, CBP, and the importer using an Imported Pistachios--Failed Lot
Notification report (form FV-249), pursuant to Sec. Sec. 999.600(e),
(g), and (h). Importers are also currently required to report the
disposition of reworked and failed lots to USDA and CBP using an
Imported Pistachios--Rework and Failed Lot Disposition report (form FV-
251), pursuant to Sec. Sec. 999.600(g) and (h). Both the form FV-249
and form FV-251 were previously approved as paper forms.
Section 999.600(f) requires that the laboratories provide an
aflatoxin inspection certificate to importers that contains, among
other things, a statement as to whether the lot meets or fails the
import requirements under section 8e. Thus, all aflatoxin test results
are provided to importers by the testing laboratories.
Section 999.600 will be revised by changing the reporting
requirements for laboratories (form SC-249) and importers (form FV-
251). USDA and USDA-accredited laboratories currently submit a paper
form FV-249 to USDA, CBP, and the importer when a lot fails to meet the
aflatoxin requirements of the pistachio import regulations. The testing
laboratories are now meeting this requirement and are also voluntarily
providing information to USDA about lots that meet aflatoxin
requirements; in other words, the laboratories are providing all
aflatoxin test results to USDA, not just failed lot notifications.
Importers currently complete and submit a paper form FV-251 to report
the disposition of reworked or failed lots to USDA and CBP.
To streamline the regulations and eliminate the paper-based
reporting process, AMS has converted the existing paper form to an
electronic format, form
[[Page 12988]]
SC-249. The electronic format provides for the laboratories to report
all aflatoxin test results to AMS, in line with the current practice.
USDA's Science and Technology Program approves and accredits
laboratories to perform chemical analysis of pistachios for aflatoxin
content. The regulations will require accredited laboratories to submit
aflatoxin test results to AMS using the electronic form SC-249, and
USDA laboratories will also use the electronic form SC-249 to submit
test results to AMS. AMS has determined that CBP does not require this
test result information, and the laboratories already provide importers
with certificates for all aflatoxin tests; therefore, the laboratories
will be required to electronically submit form SC-249 to only USDA and
not to CBP or importers.
In addition to the changes to laboratory-reporting requirements,
Sec. 999.600 will be revised to remove the requirement that importers
report the disposition of reworked or failed lots to USDA and CBP using
the Imported Pistachios--Rework and Failed Lot Disposition report (form
FV-251). When this form was included in a proposed rule published in
the Federal Register on October 11, 2011, (76 FR 65411) and implemented
in a final rule published in the Federal Register on August 27, 2012,
(77 FR 51686), AMS believed that the most effective way to ensure
compliance with the rework and failed lot disposition requirements of
the pistachio import regulations was to require importers to submit the
form FV-251 with details about reworked, exported, sold for non-human
consumption, or destroyed lots. Since that time, however, AMS has
determined that the information provided on this form is available from
other sources (for example, destruction information is available from
AMS' SCI Division) or requires additional follow up with an importer.
The requirements for rework and final disposition of failed lots is not
changing; only the reporting associated with these requirements is
changing. Importers will no longer be required to submit the form FV-
251 because AMS has determined that information provided on this form
is available from other sources. In March 2017, AMS received approval
from OMB to remove form FV-251 from the information collection package
OMB No. 0581-0215.
Accordingly, Sec. Sec. 999.600(e), (g), and (h) will be revised to
reflect the changes to reporting noted above.
Other Changes
To further ensure that the fruit, vegetable, and specialty crop
import regulations provide accurate information to the import trade and
in furtherance of streamlining processes in support of ITDS, the
following changes will be made:
Contact information for inspection offices and ports of entry, and
references to importers making various advance arrangements for
inspection services will be revised or removed from the fruit import
regulations at Sec. Sec. 944.400(a) (designated inspection services
and procedures), 944.401(c) (olives); the vegetable import regulations
at Sec. Sec. 980.1(g)(1)(ii) (potatoes), 980.117(f)(3) (onions);
980.212(f)(3) (tomatoes); and in the specialty crop regulations at
Sec. Sec. 999.1(c)(1) (dates), 999.100(c)(4) (walnuts), 999.300(c)(3)
(raisins), and 999.400(c)(2) (filberts). The contact information for
individual inspection offices and ports of entry is currently out of
date in many of these sections. Under ITDS, importers will
electronically file initial requests for inspection (SC-357, Initial
Inspection Request for Regulated Import Commodities), which will alert
the appropriate inspection office and CBP that a regulated commodity
will be arriving that will require inspection at the port of entry or
at another location. This electronic process will provide the needed
advance notice to the inspection service. AMS' SCI Division has amended
its inspection application regulations (7 CFR parts 51 and 52) to
provide for the electronic filing of the initial request for
inspection, thereby meeting CBP's requirement that the regulations of
agencies participating in ITDS be revised to provide for electronic
filing of shipment entry data (81 FR 93571, December 21, 2016). This
rule adds contact information (address, telephone number, and facsimile
numbers) for the main SCI office in Washington, DC, in the event
importers need any information about inspection services. This change
also makes the fruit, vegetable, and specialty crop regulations more
current and consistent.
Administrative changes include updating the USDA agency and program
names in Sec. Sec. 944.400(a) (designated inspection services and
procedures) and 944.401(a)(5) and (c) (olives) in the fruit import
regulations; 980.1(f) (potatoes), 980.117(e) (onions), and 980.212(e)
(tomatoes) in the vegetable import regulations; and 999.600(h)
(pistachios) in the specialty crop import regulations. Additionally,
the word ``nectarines'' will be removed from Sec. 944.400(a)
(designated inspection services and procedures) of the fruit import
regulations. Nectarines were regulated in the past but are not
currently regulated under the fruit import regulations and should not,
therefore, be listed in this section.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), AMS considered the information collection requirements
necessary for form SC-357 (Initial Inspection Request for Regulated
Imported Commodities) for importers to electronically complete to
submit CFIA's inspection certificates and certificate numbers. It was
deemed not to place an additional paperwork burden on importers. No
changes in the information collection requirements pertaining to OMB
No. 0581-0125 (Regulations Governing Inspection Certification of Fresh
& Processed Fruits, Vegetables, & Other Products) are necessary as a
result of this action. Should any changes become necessary, they would
be submitted to OMB for approval.
The information collection requirements for the form SC-249 (for
imported pistachios) have been previously approved by OMB and assigned
OMB No. 0581-0215 (Pistachios Grown in California, Arizona, and New
Mexico). As noted earlier, form SC-249 is contained within the OMB
information collection for the domestic pistachio marketing order but
is used strictly for imported pistachios.
In March 2017, OMB approved AMS' request for changes to the
information collection currently approved under OMB No. 0581-0215,
Pistachios Grown in California, Arizona and New Mexico, by renaming the
existing form number and name to form SC-249, Notification of Aflatoxin
Levels, to reflect the USDA program name change to Specialty Crops (SC)
and the inclusion of all aflatoxin test results; providing for the
electronic submission of form SC-249; and relaxing the submission
requirements so that laboratories submit the form to only USDA,
eliminating the need to also submit the form to CBP and importers.
There are currently nine USDA-accredited laboratories that could
potentially submit all aflatoxin test results to USDA instead of only
failed test results using form SC-249. The number of respondents
changed from 7 to 9 to cover all 9 laboratories completing the form,
the estimated number of responses per respondent increased from 4 to 7
to more accurately capture the number of times per year each laboratory
typically submits the form to USDA, and the annual burden
[[Page 12989]]
hours increased as a result of the increased number of respondents and
annual responses from 5.6 hours to 11.55 hours (this is a slight
reduction from the 12.60 annual burden hours that were previously
calculated and included in the proposed rule concerning this action
that was published in the Federal Register on December 6, 2016, 81 FR
87849). These changes necessitated by the rulemaking action were
included in AMS' request to OMB to revise this information collection
and were approved by OMB in March 2017. The revised form SC-249 was
then included in the June 2017 three-year renewal of this information
collection.
Executive Order 12866 and the Regulatory Flexibility Act
A Regulatory Impact Analysis is required for significant rules by
Executive Orders 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives. If regulation
is necessary, then agencies must select the action that maximizes net
benefits, including potential economic, environmental, public health
and safety effects, and equity. This analysis examines the costs and
benefits of this rule on importers, Customs brokers, and USDA. This
document also addresses the requirement of Executive Order 13771 that
agencies provide the best approximation of total costs and savings
associated with a new or repealed regulation.
Need for Regulatory Action
This final rule streamlines and automates import entry and
reporting processes for the import trade as well as USDA and USDA-
accredited laboratories. These changes support the International Trade
Data System (ITDS) initiative and will reduce the burden on the import
industry while also enhancing AMS' ability to ensure compliance with
its import regulations. In addition, this rule allows AMS to meet a
U.S. Customs and Border Protection (CBP) requirement that all
government agencies participating in the ITDS project update their
regulations to provide for the electronic entry of import information.
This rule also ensures that the import trade has access to accurate and
up-to-date information in AMS' import regulations.
Importers of Canadian potatoes, onions, and tomatoes that are
certified by CFIA as meeting section 8e requirements are not currently
required to provide AMS with proof of this certification prior to
import. This rule mandates that AMS receive proof of CFIA certification
through electronic entry of CFIA certificate numbers and electronic
copies of certificates. Other agencies, such as CBP, already require
importers to electronically enter information about shipments. The
implementation of electronic filing capability via ACE and CEMS, will
allow entries and associated paperwork to be transmitted to and
verified electronically by AMS. Under this system, the importer would
electronically file entries via ACE, which would then electronically
transmit data to CEMS. Once the data is received, CEMS automatically
records information regarding the entry and transmits an electronic
notification to the inspection office identified by the filer via
email. The ACE Secure Data Portal is covered by OMB Control number
1651-0105 and is the primary means of importers and other trade filers
to submit information to ACE and establish their user accounts. CBP
published its Privacy Impact Analysis concurrent with a System of
Records Notice on July 31, 2015. It is numbered DHS/CBP/PIA-003(b) and
available at https://www.dhs.gov/sites/default/files/publications/privacy-piaupdate-cbp-ace-july2015.pdf) CBP and AMS established a
Memorandum of Understanding, dated May 29, 2019, formalizing their
respective roles in sharing information that supports ACE's ability to
service the trade community.
After the import undergoes a mandatory grading inspection, the
inspection service electronically transmits pertinent inspection
information to CEMS. If the inspection information identifies the entry
as having met import requirements, CEMS automatically reconciles the
inspection information against the entry information it previously
stored. If the entry does not meet import requirements, a case is
created in CEMS, which is electronically assigned to MOAD for
investigation.
This process reduces or eliminates the handling and processing of
paper forms and adheres to the Paperwork Reduction Act of 1995. The
previous paper-based filing method remains available for instances when
the system may be temporarily off-line, or for filers with an inability
to file electronically.
This electronic filing option should streamline business
operations, both for importers of these commodities, and for USDA,
which will use the electronically submitted data to monitor compliance
with section 8e regulations. Electronic submission of this certificate
information would meet CBP's requirement to ensure that the regulations
of those government agencies participating in the ITDS project, such as
AMS, provide for the electronic submission of required data. This
change should create little to no burden on importers while providing
AMS with the ability to properly monitor imported vegetable shipments
for compliance with the import regulations.
This rule also changes the reporting requirements of aflatoxin test
results of imported pistachios. Currently, USDA and USDA-accredited
laboratories are required to submit documentation for all lots of
imported pistachios that fail the test for aflatoxin to USDA, CBP, and
the importer. The importer is also required to submit documentation to
USDA and CBP for lots that fail the test for aflatoxin when lots are
reworked for further testing, or are exported, sold for non-human
consumption, or destroyed. This rule changes these requirements in that
laboratories will electronically report all aflatoxin test results
(both ``meets'' and ``fails'') to USDA. Importers already receive these
results from laboratories through aflatoxin test certificates. CBP has
reported that it does not need to receive documentation of aflatoxin
test results. As all USDA and USDA-accredited laboratories already
electronically supply USDA with all aflatoxin test results of imported
pistachios, this rule should have little to no impact on these
entities.
This rule is expected to generate time and cost-savings for
importers, Customs brokers, MOAD specialists, and USDA and USDA-
accredited laboratories. The benefits, assessed both qualitatively and
quantitatively, are expected to outweigh any costs of this rule. The
burden on the impacted entities is anticipated to be minimal.
Affected Entities
The entities that are most likely to be affected by this rule
primarily include importers of potatoes, tomatoes, and onions from
Canada, and importers of pistachios. Also likely to be impacted are
Customs brokers hired by importers to file the CFIA certification with
CBP, MOAD specialists who are responsible to ensure that imports meet
section 8e standards, and USDA and USDA-accredited laboratories that
perform chemical analysis of aflatoxin levels in imported pistachios.
All entities are expected to gain time and cost-savings as a result of
this rule.
Based on 2015 information from CBP, the most recent data available
to AMS, USDA estimates that there are 25 importers of potatoes from
Canada, 13 importers of onions from Canada, and 12 importers of
tomatoes from Canada.
[[Page 12990]]
The Harmonized Tariff Schedule (HTS) codes of imports of potatoes,
tomatoes, and onions that are subject to quality inspection are listed
in Table 1. Using these codes, USDA retrieved data from the Global
Agricultural Trade System (GATS), which is administered by the USDA's
Foreign Agricultural Service (FAS).
Table 1--HTS Codes for Imported Potatoes, Tomatoes, and Onions Subject
to Quality Inspection in Accordance With Federal Marketing Orders and
Agreements
------------------------------------------------------------------------
HTS codes Descriptions
------------------------------------------------------------------------
0701.90.5015.................... Potatoes, fresh, other: In immediate
containers not over 1,200 kg net
weight, russet or netted gem.
0701.90.5025.................... Potatoes, fresh, other: In immediate
containers not over 1,200 kg net
weight, red skin.
0701.90.5035.................... Potatoes, fresh other: In immediate
containers not over 1,200 kg net
weight, other.
0701.90.5045.................... Potatoes, fresh other, other, russet
or netted gem.
0701.90.5055.................... Potatoes, fresh, other, other, red
skin.
0701.90.5065.................... Potatoes, fresh, other, other.
0702.00.2099.................... Tomatoes, fresh, entered from 3/1-7/14
or 9/1-11/14, other, other.
0702.00.4098.................... Tomatoes, fresh, entered 7/15-8/31,
other, other.
0702.00.6099.................... Tomatoes, fresh, entered 11/15-last
day of February, other, other.
0703.10.20...................... Onions, onion sets.
0703.10.30...................... Onions, pearl onions not over 16 mm in
diameter.
0703.10.40...................... Onions, other.
------------------------------------------------------------------------
Source: CBP and Trade Automated Interface Requirements, September 2016.
Table 2 shows three-year average import volumes for potatoes,
tomatoes, and onions from Canada and from all U.S. trading partners for
the years 2015 through 2017. As shown in the fourth column, almost all
potatoes imported into the United States come from Canada. About 13
percent of imported onions originate in Canada, as do 4 percent of
tomatoes.
Table 2--Average Import Volume of Potatoes, Tomatoes, and Onions for 2015-2017
----------------------------------------------------------------------------------------------------------------
Imports from
Imports from Total imports Canada as
Commodity Canada (lbs.) (lbs.) share of total
(percent)
----------------------------------------------------------------------------------------------------------------
Potatoes........................................................ 777,061,999 777,115,645 99.99
Tomatoes........................................................ 13,208,999 307,818,502 4.29
Onions.......................................................... 152,630,386 1,144,195,001 13.34
----------------------------------------------------------------------------------------------------------------
Source: FAS-GATS.
According to GATS data, potatoes account for approximately 28
percent of U.S. fresh vegetable import volume from Canada. Canada is
the second-largest trading partner of the United States in terms of
fresh vegetable import volume, accounting for 18 percent of fresh
vegetable imports.
In-shell and shelled pistachio imports are also subject to quality
inspection under section 8e requirements. Table 3 lists the HTS codes
of imported pistachios subject to aflatoxin testing and the three-year
average volume of imports from 2015 to 2017. Turkey is the largest
supplier of both in-shell and shelled imported pistachios into the
United States, supplying 74 percent and 66 percent of their totals,
respectively. Altogether, Turkey accounts for 70 percent, on average,
of total U.S. pistachio import volume. Greece supplies 14 percent of
in-shell imports, and Italy supplies 14 percent of shelled imports.
Table 3--HTS Codes for Imported Pistachios Subject to Aflatoxin Testing
and Average Import Volumes for 2015-2017
------------------------------------------------------------------------
HTS codes Description Imports (lbs.)
------------------------------------------------------------------------
0802.51...................... Pistachios: In shell..... 525,803
0802.52...................... Pistachios: Shelled...... 377,946
------------------------------------------------------------------------
Sources: CBP and Trade Automated Interface Requirements, September 2016;
FAS-GATS.
In addition to importers, Customs brokers are expected to be
impacted by the change in reporting requirements as a result of this
rule. Customs brokers are hired by importers to coordinate and file the
paperwork that allows an import to enter the country. Customs brokers,
who may be private individuals or corporations, are authorized by CBP
to assist importers and exporters in meeting Federal requirements
governing trade. According to CBP, there are approximately 14,454
active licenses for Customs brokers in the United States.
MOAD, along with USDA and USDA-accredited laboratories, are the
final groups expected to be impacted by this rule. MOAD ensures that
imports subject to section 8e regulations meet the same quality
standards as the commodity produced domestically. MOAD oversees the
compliance of 14 such commodities that are subject to section 8e
regulations. As of January
[[Page 12991]]
2019, there were nine USDA and USDA-accredited laboratories that
perform chemical analysis on aflatoxin levels of pistachios. One of
these laboratories is the USDA facility in Blakely, Georgia. The other
eight are privately-owned USDA-accredited laboratories all in
California.
Baseline Definition
In fiscal year 2018, CEMS received and processed 34,686 electronic
filings of CFIA certification from CBP's ACE system. Importers and
Customs brokers have commented that the multi-step paper-based filing
process, which relied on the coordination of multiple parties, could
take up to half a day to complete, compared to less than five minutes
for filing electronically. Assuming an eight-hour workday, AMS
concludes that CEMS may generate a time savings of four hours per
filing for importers and Customs brokers. Applying this time savings to
the number of electronic filings in CEMS in 2018 results in a total of
138,744 hours saved by importers and Customs brokers for the year. The
Bureau of Labor Statistics reports a mean hourly wage for Office and
Administrative Support Occupations of $19.58 as of May 2018.
Multiplying the total hours of time saved by importers and Customs
brokers who used CEMS to file electronically in 2018 by the hourly wage
of an Office and Administrative Support worker in 2018 leads to an
estimated baseline cost savings of $2,716,608.
In 2018 and prior to CEMS, MOAD required at least one full-time
employee to manage the manual data-entry that accompanied the paper-
based filing system. The time of this full-time employee represents a
cost to the USDA of $83,462, which is the 2018 total compensation
(wages and benefits) for a full-time employee at the GS-8, Step 1 pay-
grade, adjusted for locality pay in the Washington, DC, region, and
with benefits assumed to account for 39 percent of total compensation.
Cost-Savings of the Action
Based on industry feedback, AMS estimates that approximately 25 to
30 percent of Customs brokers and importers already used ACE to
electronically file CFIA certification in fiscal year 2018, even though
it was not yet mandatory. This speaks to importers' and Customs
brokers' approval of CEMS and a willingness to file electronically.
While businesses are generally drawn to practices that maximize
efficiency and profits, the voluntary adoption of the electronic filing
system by Customs brokers and importers has not been immediate. AMS
attributes this to resistance to change. Since 2018, the portion of
Customs brokers and importers to voluntarily utilize the system has
increased to more than half. It may be true that over time, the
incentives to maximize efficiency and profits would overcome resistance
to change, and all Customs brokers and importers would voluntarily
adopt the electronic filing system. AMS recognizes, therefore, that the
estimated cost-savings attributed to this rule may be overstated in the
analysis that follows.
Customs brokers and importers have responded positively to the
change in reporting requirements, particularly in regard to the
integration of CEMS in creating and filing an Importer Exempt Commodity
Certificate (SC-6 form). Customs brokers and importers report to have
had little or no difficulty in creating an electronic copy of the form
in CEMS and report that using CEMS is an improvement compared to the
former paper-based system. Based on feedback from the industry, the
cost for Customs brokers and importers to use CEMS to electronically
file CFIA certification will be minimal.
Assuming that the number of electronic filings is evenly
distributed among importers and Customs brokers, and that the figure of
34,686 electronic filings represents 25 to 30 percent of the greater
population of filings, AMS estimates that the total number of filings
in 2018, both electronic and paper-based, to be between 115,620 and
138,744. Multiplying this range by the four hours required to complete
the paper-based filing process results in 462,480 to 554,976 total
hours required to complete the filing process prior to CEMS. The
product of the total hours and the mean hourly wage of an Office and
Administrative Support worker in 2018 is $9,055,358 to $10,866,430 in
total costs to importers and Customs brokers to administer the paper-
based filing process prior to CEMS. This range represents the potential
cost-savings for all importers and Customs brokers to use CEMS,
including those that had already adopted its use in 2018. Subtracting
the baseline hours and cost-savings of 138,744 hours and $2,716,608
from the potential time and cost-savings for all importers and Customs
brokers to use CEMS results in a range of additional time-savings of
323,736 to 416,232 hours and cost-savings of $6,338,751 to $8,149,823.
Additionally, the streamlining of the process of gathering information
and harmonizing data through CEMS results in a cost-savings to USDA of
$83,462.
The requirement in this rule for USDA and USDA-accredited
laboratories to report to USDA all test results of chemical analysis of
aflatoxin levels in pistachios is expected to generate little to no
change in costs or benefits for involved parties. This is because all
nine laboratories currently provide USDA with both ``meets'' and
``fails'' aflatoxin test results voluntarily. Converting the process
from reporting results of failed lots only on paper to instead
reporting all results electronically does not result in substantial
change in burden.
Executive Order 13771
In accordance with Executive Order 13771, this action has been
designated as neither regulatory nor deregulatory as its resultant
costs and savings are de minimis.
Alternatives to the Rule
Regarding alternatives to this action, AMS determined that these
changes to the regulations are needed to comply with the ITDS mandate
and to provide AMS with information it requires to ensure compliance
with its regulations. CBP is requiring that all government agencies
partnering on the ITDS initiative (including AMS) update their
regulations to provide for the electronic entry of import and export
shipment data. Providing for the entry of certificate information in
ACE for potatoes, tomatoes, and onions imported from Canada that have
been certified by CFIA as meeting section 8e requirements enhances AMS'
ability to monitor compliance while also meeting the objectives of ITDS
to streamline processes for the import trade. In addition, changing the
pistachio regulations by revising the reporting requirements will
streamline the regulations and reduce the burden on the trade. The
other changes finalized in this action will provide the import trade
with accurate information.
As this rule aims to streamline processes and improve efficiency,
the only alternative considered was the status quo of a paper-based
filing system and the reporting of only failed lots from aflatoxin
tests to AMS. AMS believes that the changes in reporting requirements
in this rule represent the best alternative to maximize benefits to
importers, Customs brokers, MOAD specialists, and USDA and USDA-
accredited laboratories.
Regulatory Flexibility Analysis
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (5 U.S.C. 601-612), AMS has considered the economic
impact of this action on small entities. AMS has prepared this final
Regulatory Flexibility Analysis, the
[[Page 12992]]
purpose of which is to fit regulatory actions to the scale of
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened.
Need for Regulation
Importers of Canadian potatoes, onions, and tomatoes that are
certified by CFIA as meeting section 8e standards are not currently
required to submit this certification to AMS prior to import. By
mandating that AMS receive proof of CFIA certification through
electronic entry of CFIA certificate numbers and electronic copies of
certificates, AMS can better ensure compliance of imports with section
8e standards.
Similarly, the requirement in this rule for USDA and USDA-
accredited laboratories to electronically submit all aflatoxin test
results to USDA will replace outdated reporting practices and promote
greater efficiency. Currently, these laboratories are required to
submit documentation for all lots of imported pistachios that fail the
test for aflatoxin to USDA, CBP, and the importer. The importer is also
required to submit documentation to USDA and CBP for lots that fail the
test for aflatoxin when lots are reworked for further testing, or are
exported, sold for non-human consumption, or destroyed. This rule
eliminates the need for these documents, replacing them with the
requirement that laboratories electronically report all aflatoxin test
results (both ``meets'' and ``fails'') to USDA. Importers already
receive these results from laboratories and CBP has reported that it
does not need to receive documentation of aflatoxin test results.
Objectives of the Action
This final rule changes the import regulations for potatoes,
onions, and tomatoes by requiring proof of CFIA certification through
electronic entry of CFIA certificate numbers and electronic copies of
certificates. Prior to import into the United States, importers must
enter into CBP's ACE system the certificate number and upload an
electronic image of the certificate for those shipments certified by
CFIA as meeting section 8e requirements. This information is then
transmitted through CEMS to AMS. If an importer is unable to provide
this information electronically in ACE, a copy of the certificate must
accompany the shipment at entry into the country, and the importer must
also submit a copy of the certificate to AMS via email, mail, or
facsimile.
This final rule also changes the pistachio import regulations by
modifying the reporting requirements for USDA and USDA-accredited
laboratories that perform chemical analysis of aflatoxin levels in
imported pistachios. The regulations will require these laboratories to
submit all aflatoxin test results to USDA instead of only the results
of failed lots.
Legal Basis for the Action
This final rule is issued under section 8e of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.'' Section 8e provides that
whenever certain commodities are regulated under Federal marketing
orders, imports of those commodities into the United States are
prohibited unless they meet the same or comparable grade, size,
quality, and/or maturity requirements as those in effect for the
domestically-produced commodities. The Act also authorizes the U.S.
Department of Agriculture (USDA) to perform inspections on those
imported commodities and to certify whether those requirements have
been met.
Parts 944, 980, and 999 of title 7 of the Code of Federal
Regulations (CFR) specify inspection, certification, and reporting
requirements for imported commodities regulated under section 8e,
including the governmental inspection services that are authorized to
perform certification.
There are no administrative procedures that must be exhausted prior
to any judicial challenge to the provisions of import regulations
issued under section 8e of the Act.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this final rule.
A 30-day comment period ending January 5, 2017, was provided to
allow interested persons to respond to the proposal. The import
industry, USDA laboratories, and USDA-accredited laboratories are aware
of ITDS and its goal to streamline processes. Members of the import
industry have attended annual ITDS Trade Support Network plenary
sessions conducted by the U.S. Government over the past few years. No
comments were received on the proposed rule; accordingly, no changes
will be made to the rule as proposed.
Potentially Affected Small Entities
Importers of potatoes, tomatoes, onions, and pistachios may be
engaged in a variety of different industries and in varying segments of
the supply chain. The North American Industry Classification System
(NAICS) categorizes industries based on their activities. Table 5 lists
potential industries with which importers may be involved that may be
impacted by this rule, along with information about their sizes.
Table 5--Profiles of Potentially Impacted Importers
----------------------------------------------------------------------------------------------------------------
Firms with Firms with 100- Firms with 500
NAICS codes NAICS industry Total number less than 100 499 employees employees and
description of firms employees more
----------------------------------------------------------------------------------------------------------------
Subsector 311--Food
Manufacturing
311411.................... Frozen Fruit, 153 102 24 27
Juice and
Vegetable
Manufacturing.
311423.................... Dried and 181 142 20 19
Dehydrated Food
Manufacturing.
311911.................... Roasted Nuts and 233 184 29 20
Peanut Butter
Manufacturing.
Subsector 424--Merchant
Wholesalers, Nondurable Goods
424410.................... General Line 2,443 2,300 80 63
Grocery
Merchant
Wholesalers.
424420.................... Packaged Frozen 2,570 2,377 113 80
Food Merchant
Wholesalers.
424480.................... Fresh Fruit and 4,415 4,157 208 50
Vegetable
Merchant
Wholesalers.
[[Page 12993]]
Subsector 445--Food and
Beverage Stores
445110.................... Supermarkets and 41,264 39,827 1,118 319
Other Grocery
(except
Convenience)
Stores.
445292.................... Confectionery 2,132 2,084 35 13
and Nut Stores.
----------------------------------------------------------------------------------------------------------------
Source: U.S. Census Bureau--2016 County Business Patterns.
Potatoes, tomatoes, onions, and pistachios may be imported for
further processing or be re-entered into the stream of commerce as a
fresh market product. For example, an importer of potatoes in the food
manufacturing industry (Subsector 311) may utilize imports for frozen
French fries or dehydrated potatoes. An importer may also purchase
fresh potatoes to sell to restaurants as a wholesaler (Subsector 424),
or to sell in a supermarket or grocery store (Subsector 445). According
to 2016 data from the U.S. Census Bureau, most firms in the industries
listed in Table 5 employ fewer than 100 people. Time-savings from the
automation that CEMS provides is expected to particularly benefit
importers with a smaller workforce.
The Small Business Administration (SBA) determines standards by
which entities are considered to be ``small''. These standards may be
determined by the average annual receipts or the average employment of
a firm. Table 6 shows the small business standards for the industries
in which importers of potatoes, tomatoes, onions, and pistachios may be
employed. Table 6 also shows the portion of businesses in these
industries likely to be considered ``small'', using the information in
Table 5.
Table 6--Industry Comparison With SBA Standards of Small Businesses
----------------------------------------------------------------------------------------------------------------
SBA size
NAICS industry SBA size standards in Portion of industry
NAICS codes description standards in number of estimated to meet
dollars employees standard
----------------------------------------------------------------------------------------------------------------
Subsector 311--Food
Manufacturing
311411..................... Frozen Fruit, .............. 1,000 82% (at least).
Juice and
Vegetable
Manufacturing.
311423..................... Dried and .............. 750 90% (at least).
Dehydrated Food
Manufacturing.
311911..................... Roasted Nuts and .............. 750 91% (at least).
Peanut Butter
Manufacturing.
Subsector 424--Merchant
Wholesalers, Nondurable Goods
424410..................... General Line .............. 250 94% (at least).
Grocery Merchant
Wholesalers.
424420..................... Packaged Frozen .............. 200 92% (at least).
Food Merchant
Wholesalers.
424480..................... Fresh Fruit and .............. 100 94% (at least).
Vegetable
Merchant
Wholesalers.
Subsector 445--Food and
Beverage Stores
445110..................... Supermarkets and $32,500,000 .............. Likely the majority.
Other Grocery
(except
Convenience)
Stores.
445292..................... Confectionery and 7,500,000 .............. Likely the majority.
Nut Stores.
----------------------------------------------------------------------------------------------------------------
Sources: U.S. Small Business Administration Size Standards Table (Oct. 2017); U.S. Census Bureau--2016 County
Business Patterns; U.S. Census Bureau--2016 Monthly Retail Trade Survey.
The industries listed in Table 6 under NAICS Code Subsectors 311
and 424 have small business standards based on number of employees.
Using the information in Table 5 on business firm size, AMS concludes
that most importers of potatoes, tomatoes, onions, and pistachios in
these industries are likely considered ``small''. The industries listed
in Table 6 under NAICS Code Subsector 445 have small business standards
based on average annual receipts. The U.S. Census Bureau,
unfortunately, does not publish retail sales data specific to six-digit
NAICS Code. AMS, therefore, used the business firm size data in Table 5
to estimate sales by businesses with NAICS Codes 445110 and 445292
based on the retail sales data of all businesses under NAICS Code
Subsector 445. In this estimate, AMS assumes retail sales to be evenly
spread among all industries falling within NAICS Code Subsector 445.
The results are average annual sales receipts of $1.15 million for
Confectionary and Nut Stores, and $14.5 million in average annual sales
receipts for Supermarkets and Other Grocery Stores. The majority of
businesses in these industries are, therefore, likely ``small''.
As of January 2019, there were a total of nine USDA and USDA-
accredited laboratories that perform chemical analysis on aflatoxin
levels of pistachios. One of these laboratories is the USDA facility in
Blakely, Georgia. As a government entity, it is not subject to RFA
analysis. The other eight are privately-owned USDA-accredited
laboratories in California. The SBA classifies testing laboratories
(NAICS code 541380) as small businesses if they receive no more than an
average of $15 million annually. AMS could find no data on the average
annual receipts of testing laboratories and is, therefore,
[[Page 12994]]
unable to determine whether these eight USDA-accredited laboratories
would be considered small businesses under the SBA standards.
Alternatives To Minimize Impacts of Rule
Regarding alternatives to this action, AMS determined that these
changes to the regulations are needed to comply with the ITDS mandate
and to provide AMS with information it requires to ensure compliance
with its regulations. CBP is requiring that all government agencies
partnering on the ITDS initiative (including AMS) update their
regulations to provide for the electronic entry of import and export
shipment data. Providing for the entry of certificate information in
ACE for potatoes, tomatoes, and onions imported from Canada that have
been certified by CFIA as meeting section 8e requirements enhances AMS'
ability to monitor compliance while also meeting the objectives of ITDS
to streamline processes for the import trade. In addition, changing the
pistachio regulations by revising the reporting requirements will
streamline the regulations and reduce the burden on the trade. The
other changes finalized in this action will provide the import trade
with accurate information.
AMS is committed to complying 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.
USDA has not identified any relevant Federal rules that duplicate,
overlap or conflict with this final rule.
AMS conducted extensive stakeholder outreach as part of this
rulemaking. During the summer of 2015, AMS staff members participated
in 13 outreach sessions to the U.S. import industry. The sessions took
place both in person as well as via webcast. The goal of these sessions
was to introduce the new ACE system and the government agencies that
are participating in the program. USDA presented extensive overviews of
the proposed regulations and encouraged the trade to participate by
creating their own companion software. Additionally, through 2017 and
2018, AMS staff coordinated extensively with CBP to prepare for the
changes detailed in this Rule.
A small business guide on complying with fruit, vegetable, and
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions
about the compliance guide should be sent to Richard Lower at the
previously mentioned address in the FOR FURTHER INFORMATION CONTACT
section.
Civil Rights Impact Analysis
AMS has reviewed this final rule in accordance with Departmental
Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to identify and
address any major civil rights impacts the rule might have on any
protected groups of people. After a careful review of the rule's intent
and provisions, AMS has determined that this rule would not
disproportionately or adversely impact any importers of commodities
regulated under section 8e who are members of any protected group or
employees of any USDA or USDA-accredited laboratories who are members
of any protected group.
List of Subjects
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Olives, Oranges.
7 CFR Part 980
Food grades and standards, Imports, Marketing agreements, Onions,
Potatoes, Tomatoes.
7 CFR Part 999
Dates, Filberts, Food grades and standards, Imports, Nuts,
Pistachios, Prunes, Raisins, Reporting and recordkeeping requirements,
Walnuts.
For the reasons set forth in the preamble, 7 CFR parts 944, 980,
and 999 are amended as follows:
0
1. The authority citation for 7 CFR parts 944, 980, and 999 continues
to read as follows:
Authority: 7 U.S.C. 601-674.
PART 944--FRUITS; IMPORT REGULATIONS
0
2. Revise Sec. 944.400(a) to read as follows:
Sec. 944.400 Designated inspection services and procedure for
obtaining inspection and certification of imported avocados,
grapefruit, kiwifruit, oranges, prune variety plums (fresh prunes), and
table grapes regulated under section 8e of the Agricultural Marketing
Agreement Act of 1937, as amended.
(a) The Federal or Federal-State Inspection Service, Specialty
Crops Program, Agricultural Marketing Service, United States Department
of Agriculture is hereby designated as the governmental inspection
service for the purpose of certifying the grade, size, quality, and
maturity of avocados, grapefruit, oranges, prune variety plums (fresh
prunes), and table grapes that are imported into the United States.
Agriculture and Agri-Food Canada is also designated as a governmental
inspection service for the purpose of certifying grade, size, quality
and maturity of prune variety plums (fresh prunes) only. Inspection by
the Federal or Federal-State Inspection Service or the Agriculture and
Agri-Food Canada, with appropriate evidence thereof in the form of an
official inspection certificate, issued by the respective services,
applicable to the particular shipment of the specified fruit, is
required on all imports. Inspection and certification by the Federal or
Federal-State Inspection Service will be available upon application in
accordance with the Regulations Governing Inspection, Certification and
Standards for Fresh Fruits, Vegetables, and Other Products (7 CFR part
51). For further information about Federal or Federal-State inspection
services, contact Specialty Crops Inspection Division, Specialty Crops
Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0240, Washington,
DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
* * * * *
0
3. In Sec. 944.401, revise paragraphs (a)(5) and (c) to read as
follows:
Sec. 944.401 Olive Regulation 1.
(a) * * *
(5) USDA Inspector means an inspector of the Specialty Crops
Inspection Division, Specialty Crops Program, Agricultural Marketing
Service, U.S. Department of Agriculture, or any other duly authorized
employee of the Department.
* * * * *
(c) The Specialty Crops Inspection Division, Specialty Crops
Program, Agricultural Marketing Service, U.S. Department of
Agriculture, is hereby designated as the governmental inspection
service for the purpose of certifying the grade and size of processed
olives from imported bulk lots for use in canned ripe olives and the
grade and size of imported canned ripe olives. Inspection by said
inspection service with appropriate evidence thereof in the form of an
official inspection certificate, issued by the service and applicable
to the particular lot of olives, is required. With respect to imported
bulk olives, inspection and certification shall be completed prior to
use as packaged ripe olives. With respect to canned ripe olives,
inspection and certification shall be completed prior to importation,
unless imports arrive by vessel in which case the date of inspection
and
[[Page 12995]]
certification may be after the date of importation. Any lot of olives
which fails to meet the import requirements and is not being imported
for purposes of contribution to a charitable organization or processing
into oil may be exported or disposed of under the supervision of the
Specialty Crops Inspection Division, Specialty Crops Program, AMS,
USDA, with the cost of certifying the disposal borne by the importer.
Such inspection and certification services will be available, upon
application, in accordance with the applicable regulations governing
the inspection and certification of Processed Fruits and Vegetables,
Processed Products Thereof, and Certain Other Processed Food Products
(7 CFR part 52). For questions about inspection services or for further
assistance, contact: Specialty Crops Inspection Division, Specialty
Crops Program, AMS, USDA, 1400 Independence Avenue SW, Room 1536-S,
STOP 0240, Washington, DC 20250-0237; telephone (202) 720-5870; fax
(202) 720-0393.
* * * * *
PART 980--VEGETABLES; IMPORT REGULATIONS
0
4. In Sec. 980.1, revise paragraphs (f) and (g)(1)(i) and (ii) to read
as follows:
Sec. 980.1 Import regulations; Irish potatoes.
* * * * *
(f) Designation of governmental inspection services. The Federal or
Federal-State Inspection Service, Specialty Crops Program, Agricultural
Marketing Service, U.S. Department of Agriculture, and the Food of
Plant Origin Division, Plant Products Directorate, Canadian Food
Inspection Agency, are hereby designated as governmental inspection
services for the purpose of certifying the grade, size, quality, and
maturity of Irish potatoes that are imported, or to be imported, into
the United States under the provisions of Sec. 608e of the Act.
(g) * * *
(1)(i) Inspection and certification by the Federal or Federal-State
Inspection Service will be available and performed in accordance with
the rules and regulations governing certification of fresh fruits,
vegetables, and other products (7 CFR part 51), and each lot shall be
made available and accessible for inspection as provided therein. Cost
of inspection and certification shall be borne by the applicant. For
questions about inspection services or for further assistance, contact:
Specialty Crops Inspection Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, Room 1536-S, STOP 0240, Washington,
DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
(ii) If certification is provided by a designated governmental
inspection service other than the Federal or Federal-State Inspection
Service, in accordance with 980.1(f), an importer shall electronically
transmit to USDA, prior to entry, the certificate number and an
electronic image of the certificate using the U.S. Customs and Border
Protection's Automated Commercial Environment system. If this
information is not provided electronically prior to entry, a paper copy
of the certificate must accompany the shipment at the time of entry,
and a copy of the certificate must be submitted by email or mail to the
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; telephone (888) 551-3523; or email [email protected].
* * * * *
0
5. In Sec. 980.117, revise paragraphs (e) and (f)(2) and (3) to read
as follows:
Sec. 980.117 Import regulations; onions.
* * * * *
(e) Designation of governmental inspection service. The Federal or
Federal-State Inspection Service, Specialty Crops Program, Agricultural
Marketing Service, U.S. Department of Agriculture, and the Food of
Plant Origin Division, Plant Products Directorate, Canadian Food
Inspection Agency, are hereby designated as governmental inspection
services for the purpose of certifying the grade, size, quality, and
maturity of onions that are imported, or to be imported, into the
United States under the provisions of section 8e of the Act.
(f) * * *
(2) Inspection and certification by the Federal or Federal-State
Inspection Service will be available and performed in accordance with
the rules and regulations governing certification of fresh fruits,
vegetables and other products (7 CFR part 51). Each lot shall be made
available and accessible for inspection as provided therein. Cost of
inspection and certification shall be borne by the applicant. For
questions about inspection services or for further assistance, contact:
Specialty Crops Inspection Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, Room 1536-S, STOP 0240, Washington,
DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
(3) If certification is provided by a designated governmental
inspection service other than the Federal or Federal-State Inspection
Service, in accordance with 980.117(e), an importer shall
electronically transmit to USDA, prior to entry, the certificate number
and an electronic image of the certificate using the U.S. Customs and
Border Protection's Automated Commercial Environment system. If this
information is not provided electronically prior to entry, a paper copy
of the certificate must accompany the shipment at the time of entry,
and a copy of the certificate must be submitted by email or mail to the
Marketing Order and Agreement Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-
0237; telephone (888) 551-3523; email [email protected]; or fax
(202) 720-5698.
* * * * *
0
6. In Sec. 980.212, revise paragraphs (e) and (f)(2) and (3) to read
as follows:
Sec. 980.212 Import regulations; tomatoes.
* * * * *
(e) Designation of governmental inspection service. The Federal or
Federal-State Inspection Service, Specialty Crops Program, Agricultural
Marketing Service, U.S. Department of Agriculture, and the Food of
Plant Origin Division, Plant Products Directorate, Canadian Food
Inspection Agency, are hereby designated as governmental inspection
services for the purpose of certifying the grade, size, quality, and
maturity of tomatoes that are imported, or to be imported, into the
United States under the provisions of section 8e of the Act.
(f) * * *
(2) Inspection and certification by the Federal or Federal-State
Inspection Service will be available and performed in accordance with
the rules and regulations governing certification of fresh fruits,
vegetables and other products (7 CFR part 51). Each lot shall be made
available and accessible for inspection as provided therein. Cost of
inspection and certification shall be borne by the applicant. For
questions about inspection services or for further assistance, contact:
Specialty Crops Inspection Division, Specialty Crops Program, AMS,
USDA, 1400 Independence Avenue SW, Room 1536-S, STOP 0240, Washington,
DC 20250-0237; telephone (202) 720-5870; fax (202) 720-0393.
(3) If certification is provided by a designated governmental
inspection service other than the Federal or Federal-State Inspection
Service, in accordance with 980.212(e), an importer shall
electronically transmit to USDA,
[[Page 12996]]
prior to entry, the certificate number and an electronic image of the
certificate using the U.S. Customs and Border Protection's Automated
Commercial Environment system. If this information is not provided
electronically prior to entry, a paper copy of the certificate must
accompany the shipment at the time of entry, and a copy of the
certificate must be submitted by email or mail to the Marketing Order
and Agreement Division, Specialty Crops Program, AMS, USDA, 1400
Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; telephone
(888) 551-3523; email [email protected]; or fax (202) 720-5698.
* * * * *
PART 999--SPECIALTY CROPS; IMPORT REGULATIONS
Sec. 999.100 [Amended]
0
7. In Sec. 999.100, amend paragraph (c)(4) by removing the last
sentence.
0
8. In Sec. 999.300, revise paragraph (c)(3) to read as follows:
Sec. 999.300 Regulation governing importation of raisins.
* * * * *
(c) * * *
(3) Whenever raisins are offered for inspection, the applicant
shall furnish any labor and pay any costs incurred in moving and
opening containers as may be necessary for proper sampling and
inspection. The applicant shall also furnish the USDA inspector the
entry number and such other identifying information for each lot as the
inspector may request.
* * * * *
0
9. In Sec. 999.400, revise paragraph (c)(2) to read as follows:
Sec. 999.400 Regulation governing the importation of filberts.
* * * * *
(c) * * *
(2) Inspection. Inspection shall be performed by USDA inspectors in
accordance with the Regulations Governing the Inspection and
Certification of Fresh Fruits and Vegetables and Related Products (7
CFR part 51). The cost of each such inspection and related
certification shall be borne by the applicant. Whenever filberts are
offered for inspection, the applicant shall furnish any labor and pay
any costs incurred in moving and opening containers as may be necessary
for proper sampling and inspection. The applicant shall also furnish
the USDA inspector the entry number and such other identifying
information for each lot as the inspector may request. Inspection must
be completed prior to the importation, unless imported by vessel, in
which case for filberts, the date of release may be used.
* * * * *
0
10. Amend Sec. 999.600 by revising paragraphs (e)(2) and (3), (g), and
(h) to read as follows:
Sec. 999.600 Regulation governing the importation of pistachios.
* * * * *
(e) * * *
(2) Lots that require a single test sample will be certified as
``negative'' on the aflatoxin inspection certificate if the sample has
an aflatoxin level at or below 15 ppb. If the aflatoxin level is above
15 ppb, the lot fails. The laboratory shall electronically submit the
results to USDA as described in paragraph (h) of this section.
(3) Lots that require two test samples will be certified as
``negative'' on the aflatoxin inspection certificate if Test Sample #1
has an aflatoxin level at or below 10 ppb. If the aflatoxin level of
Test Sample #1 is above 20 ppb, the lot fails and the laboratory shall
electronically submit the results to USDA as described in paragraph (h)
of this section. If the aflatoxin level of Test Sample #1 is above 10
ppb and at or below 20 ppb, the laboratory may, at the importer's
discretion, analyze Test Sample #2 and average the test results of Test
Samples #1 and #2. Alternately, the importer may elect to withdraw the
lot from testing, rework the lot, and resubmit it for testing after
reworking. If the importer directs the laboratory to proceed with the
analysis of Test Sample #2, a lot will be certified as negative to
aflatoxin and the laboratory shall issue an aflatoxin inspection
certificate if the averaged result of Test Samples #1 and #2 is at or
below 15 ppb. If the average aflatoxin level of Test Samples #1 and #2
is above 15 ppb, the lot fails. The laboratory shall electronically
submit the results to USDA as described in paragraph (h) of this
section.
* * * * *
(g) Failed lots/rework procedure. Any lot or portion thereof that
fails to meet the import requirements prior to or after reconditioning
may be exported, sold for non-human consumption, or disposed of under
the supervision the Federal or Federal-State Inspection Programs, with
the costs of certifying the disposal of such lot paid by the importer.
(1) Inshell rework procedure for aflatoxin. If inshell rework is
selected as a remedy to meet the aflatoxin requirements of this part,
then 100 percent of the product within that lot shall be removed from
the bulk and/or retail packaging containers and reworked to remove the
portion of the lot that caused the failure. Reworking shall consist of
mechanical, electronic, or manual procedures normally used in the
handling of pistachios. The reworked lot shall be sampled and tested
for aflatoxin as specified in paragraphs (d) and (e) of this section,
except that the lot sample size and the test sample size shall be
doubled. If, after the lot has been reworked and tested, it fails the
aflatoxin test for a second time, the lot may be shelled and the
kernels reworked, sampled, and tested in the manner specified for an
original lot of kernels, or the failed lot may be exported, used for
non-human consumption, or otherwise disposed of.
(2) Kernel rework procedure for aflatoxin. If pistachio kernel
rework is selected as a remedy to meet the aflatoxin requirements of
this part, then 100 percent of the product within that lot shall be
removed from the bulk and/or retail packaging containers and reworked
to remove the portion of the lot that caused the failure. Reworking
shall consist of mechanical, electronic, or manual procedures normally
used in the handling of pistachios. The reworked lot shall be sampled
and tested for aflatoxin as specified in paragraphs (d) and (e) of this
section.
(3) Failed lot reporting. If a lot fails to meet the aflatoxin
requirements of this part, the testing laboratory shall electronically
submit the results to USDA as described in paragraph (h) of this
section within 10 working days of the test failure. This information
must be submitted each time a lot fails aflatoxin testing.
(h) Reports and Recordkeeping: Notification of Aflatoxin Levels.
Each USDA or USDA-accredited laboratory shall notify the Marketing
Order and Agreement Division, Specialty Crops Program, AMS, USDA of all
aflatoxin test results for all lots by electronically submitting this
form within 10 days of testing through a format specified by the
Secretary.
* * * * *
Dated: February 21, 2020.
Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-03895 Filed 3-5-20; 8:45 am]
BILLING CODE 3410-02-P
