SUPPLEMENTARY INFORMATION:

Background

Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the Secretary of Agriculture is authorized to take such actions as may be necessary to prevent the introduction and spread of plant pests and noxious weeds within the United States. The Secretary has delegated this authority to the Administrator of the Animal and Plant Health Inspection Service (APHIS) within the U.S. Department of Agriculture (USDA). Pursuant to the regulations in 7 CFR part 319, APHIS prohibits or restricts the importation of plants and plant products into the United States to prevent the introduction of plant pests that are not already established in the United States or plant pests that may be established but are under official control.

The regulations in Subpart O-Coffee, §§ 319.73-1 through 319.73-4 (referred to below as the regulations) prohibit the importation of unroasted coffee, coffee leaves, and empty sacks used for unroasted coffee into Hawaii and Puerto Rico. Section 319.73-2(a) prohibits the importation of these articles to prevent the introduction and spread of two plant pests: the coffee berry borer, Hypothenemus hampei, and coffee leaf rust, Hemileia vasatrix.

We are proposing to remove the reference to these two pests from § 319.73-2(a) and state instead that the prohibition exists to prevent the introduction of quarantine pests. This change would allow us to analyze plant pest risk more comprehensively when considering requests for changes to the prohibition on importing unroasted coffee and related articles into Hawaii and Puerto Rico and therefore better protect United States agriculture from plant pests. Moreover, the regulations were written at a time when Hypothenemus hampei and Hemileia vasatrix were not present in Puerto Rico and Hawaii; as this is no longer the case, our amendment would also serve to adapt the regulations to the changing pest situation in Hawaii and Puerto Rico. To clarify what we mean by quarantine pests, we would add a definition for the term in § 319.73-1. Quarantine pest would be defined as a pest of potential economic importance to the area endangered by it and not yet present there, or present but not widely distributed there and being officially controlled.

We are also proposing a new process for amending the import regulations in subpart O. Any individual who wishes to request a change to the import regulations contained in part 319 must do so by following the procedures outlined in § 319.5. Currently, any change to the prohibition on importing unroasted coffee and related articles that may result from such a request must occur through rulemaking to establish an exemption from the blanket prohibition referenced earlier in this document. The regulations in subpart O have never been amended in response to such a request. However, we have received stakeholder interest regarding the importation of unroasted coffee beans into Hawaii and Puerto Rico and expect that this interest may continue. We believe that stakeholders, as well as APHIS, would benefit from a simplified and streamlined process for changing the regulations.

APHIS has found that a notice-based process generally allows us to respond to changes in the pest risk associated with the importation of plants, plant parts, or plant products in a more timely manner than rulemaking, while still providing the public with an opportunity to thoroughly evaluate the risk documentation on which our proposed changes are based. We currently use notice-based processes for changes to the import regulations for plants for planting in 7 CFR 319.37, and for changes to the import regulations for fruits and vegetables in 7 CFR 319.56. Given our successful experience using this process for those commodities, we are proposing to establish a notice-based process for changing the regulations regarding importing unroasted coffee beans and related articles into Hawaii and Puerto Rico. Specifically, we ( printed page 50486) propose to redesignate §§ 319.73-3 and 319.73-4 as §§ 319.73-4 and 319.73-5, respectively, and add a new § 319.73-3 that would discuss the conditions for the importation of unroasted coffee, and the current list of related articles including coffee leaves, and empty sacks previously used for unroasted coffee into Hawaii and Puerto Rico.

In the new § 319.73-3, paragraph (a) would outline the notice-based process for authorizing the importation of articles listed in § 319.73-2(a)(1)-(3) into Hawaii and Puerto Rico. Articles may be imported after APHIS has analyzed the pest risk posed by the importation of such articles from a specified foreign region, and has determined that the articles do not pose a risk of introducing quarantine pests, or that the quarantine pest risk posed by the articles can be reasonably mitigated by specified requirements; APHIS has made its pest risk analysis and determination available for public comment for at least 60 days through a notice published in the Federal Register ; and APHIS has announced its decision in a subsequent Federal Register notice. The decision would state either that, based on the absence of comments, or the nature of the comments received, the Agency is authorizing the importation of the articles subject to the requirements initially proposed; or, based on the comments received, the Agency is authorizing the importation of the articles under revised requirements that respond to the comments. In the event that APHIS decides against authorizing the importation after receiving public comments, the general prohibition in 319.73-2(a) would continue to apply to the relevant articles.

Paragraph (b) would direct individuals to the USDA Agricultural Commodity Import Requirements (ACIR) database for the name and origin of all articles authorized importation under § 319.73-3, as well as the applicable requirements for their importation. We would state that ACIR is available on the internet at https://acir.aphis.usda.gov/​s/​. Hard copies of ACIR entries may be obtained by calling (301) 851-2046 or (877) 770-5990 (toll-free automated system), by emailing acirdatabase.comments@usda.gov, or by submitting a request to the United States Department of Agriculture Animal and Plant Health Inspection Service, Attention: PPQ-PEIP-IRM-ISMU, 1400 Independence Ave. SW, Washington, DC 20250.

Proposed paragraph (c) would outline the processes for changing the requirements relevant to importing coffee articles. Paragraph (c)(1) would provide that, if APHIS determines that the requirements for the importation of articles listed in § 319.73-2(a)(1)-(3) that have been authorized importation under subpart O are no longer sufficient to reasonably mitigate the pest risk posed by the articles, APHIS will prohibit or add further requirements for the importation of the articles. APHIS would also publish a notice in the Federal Register advising the public of its finding. The notice would specify the amended importation requirements, provide an effective date for the change, and would invite public comment on the subject.

Paragraph (c)(2) would provide that, if APHIS determines that any of the requirements for an article that has been authorized importation under subpart O are no longer necessary to reasonably mitigate the pest risk posed by the article, APHIS will make new pest risk documentation available for public comment, using the process described in paragraphs (a)(2)-(3) of § 319.73-3, prior to allowing importation of the article subject to the removed or relaxed requirements specified in the notice.

In proposed paragraph (d), we would direct individuals who wish to request the authorization for importation of articles listed in § 319.73-2(a)(1)-(3) into Hawaii and Puerto Rico from a specified foreign region, or to request a change in the requirements for the importation of such articles, to § 319.5. As explained earlier, § 319.5 provides the procedures for requesting a change in import conditions for plants, plant parts, or plant products covered under part 319. We believe that adding a direct reference to these procedures would add clarity for stakeholders who wish to request a change to the prohibition on importing unroasted coffee and related coffee products into Hawaii and Puerto Rico.

Finally, in § 319.73-1, we are proposing to add two additional definitions. We would add a definition for APHIS to read, “the Animal and Plant Health Inspection Service, United States Department of Agriculture.” The term APHIS is currently used in the regulations but is not defined. We are also proposing to revise the definition of United States to increase clarity and harmonize the definition in subpart O with the definition of United States in several other subparts in part 319, including that in Subpart L—Fruits and Vegetables. The revised definition would define United States as all of the States of the United States, the Commonwealth of Northern Mariana Islands, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the United States, and any other territory or possession of the United States.

Executive Order 12866, Executive Order 14192, and Regulatory Flexibility Act

This proposed 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. As a proposed rule, it also is not subject to Executive Order 14192.

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is summarized below, regarding the economic effects of this proposed rule on small entities. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov).

Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

The Animal and Plant Health Inspection Service (APHIS) is proposing to amend the regulations regarding the importation of unroasted coffee and related articles into Hawaii and Puerto Rico by establishing a notice-based process for changes to the prohibitions on importing such articles. The proposal would also broaden language regarding coffee pests. APHIS is proposing these amendments because they would allow the Agency to more efficiently respond to market access requests as well as to emerging pest situations. These amendments would allow the Agency to use a streamlined approach to update the importation conditions for unroasted coffee and related articles while continuing to protect plant health.

This proposed rule would have no direct impact on the quantity of green coffee beans imported into Hawaii or Puerto Rico. The proposed rule does not grant any new specific market access or even expand the general possibility of requesting market access for foreign unroasted coffee. It does set up a streamlined approach to update the importation conditions for unroasted ( printed page 50487) coffee. Going forward, the streamlined approach could facilitate a broader source of green coffee available to be imported into Hawaii or Puerto Rico. If such future actions were to occur, and there were changes in imports as a result, producers and consumers of coffee products in the Hawaiian and Puerto Rican coffee markets could be affected.

The proposed rule does not itself grant any market access for green unroasted coffee beans. However, if future actions enabled by this rule lead to an expansion of imports, the impact of any such expanded imports is likely to be limited. Because coffee grown in Hawaii and Puerto Rico is generally marketed as a specialty or premium product it does not directly compete with mass-market commodity coffee, including imported green beans. Hawaii's coffee market conditions have changed and will continue to change substantially in the near future. These shifts, particularly new state regulations affecting blending standards and the identification of Hawaii-grown coffee products, are anticipated to significantly impact the marketing and supply chain for Hawaii-grown coffee across retail and food service markets. Coffee products produced and supplied by Hawaii include coffee beans with a 100% Hawaii geographic origin ( e.g., 100% Kona coffee), but also roasted coffee blends ( e.g., 10% Kona coffee) that may contain prime or lower grade beans grown in Hawaii, as well as lower-cost beans imported from other countries. These blends make up much of the coffee sold from Hawaii. Currently, coffee blends may carry a Hawaii geographical reference if they contain a minimum of 10% Hawaii-grown beans. The new standard will require a minimum of 51% Hawaii-grown beans to carry a Hawaii geographical reference after July 1st, 2027. Fully Hawaii-grown coffee products, i.e., 100% Kona coffee, are extremely limited by the quantity of Hawaiian and sub-regional (particularly Kona) coffee production. Reducing import friction relative to foreign-grown green coffee beans facilitates the production of the blended products and adds value to those imported beans. Because of the specialty premium market positioning of Hawaii-grown coffee, an increase in the imports of foreign-grown green coffee beans would not directly impact the products that consist entirely of Hawaii-grown coffee beans. It is possible that future actions that are facilitated by the existence of this rule could have impacts on consumers, producers, and retailers of blended coffee products, but any impacts would very likely be small relative to larger market forces like the blending and labeling changes.

Puerto Rico imports substantial quantities of foreign-grown coffee. Puerto Rico-grown coffee is generally considered to be a premium specialty product, rather than a generic commodity like many cheaper imported coffees. Puerto Rico, which consumes about ten times as much coffee as it produces, requires significant levels of importation of foreign-grown coffee beans. Thus, the cheaper imported beans are not primarily competing with locally-grown coffee, much of which is exported or sold in the U.S. mainland specialty coffee market. Consumers of coffee products, both in Hawaii and Puerto Rico as well as in the continental United States, would benefit to the extent that an expansion of foreign-grown green coffee beans increases supply or lowers prices of blended coffee products in those markets.

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This proposed rule contains no new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Accordingly, we propose to revise 7 CFR part 319, subpart O, to read as follows:

1. Amend § 319.73-1 by:

a. Adding, in alphabetical order, definitions for APHIS and Quarantine pest; and

b. Revising the definition of United States.

The additions and revision read as follows:

2. Revise § 319.73-2 to read as follows:

3. Redesignate §§ 319.73-3 and 319.73-4 as §§ 319.73-4 and 319.73-5, respectively.

4. Add new § 319.73-3 to read as follows:

91 FR 50485