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###### Department of Agriculture

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

          - 7 CFR Part 319
          - [Docket No. APHIS-2010-0002]
          - RIN 0579-AD16

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Final rule.

# SUMMARY:

We are amending the regulations to allow, under certain conditions, the importation of commercial shipments of peppers from Panama into the United States without treatment. Conditions of entry to which the peppers will be subject include trapping, pre-harvest inspection, and shipping procedures. This action will allow for the importation of peppers from Panama into the United States while continuing to provide protection against the introduction of quarantine pests.

# DATES:

*Effective Date:*                         September 22, 2011.                    

# FOR FURTHER INFORMATION CONTACT:

Mr. David Lamb, Import Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 734-0627.

# SUPPLEMENTARY INFORMATION:

## Background

                    The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1      ( print page 52545)                        through 319.56-51, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.                 

                    On June 1, 2010, we published in the                     **Federal Register**                     (75 FR 30303-30305, Docket No. APHIS-2010-0002) a proposal [1]                                          to amend the regulations in § 319.56-40 by allowing, under certain conditions, the importation of commercial shipments of peppers from Panama into the United States without treatment. We also proposed to add two additional pests to the list of pests for which inspection is required: Bacterial wilt and tomato severe leaf curl virus. Finally, we proposed removing two pests from the list of pests for which peppers from Central America must be inspected: The banana moth (                    *Opogona sacchari*) and tomato yellow mosaic virus.                

We solicited comments concerning our proposal for 60 days ending August 2, 2010. We received five comments by that date. They were from producers, representatives of State and foreign governments, and private individuals. The issues raised in those comments are discussed below by topic.

## Pest List

                    Section 319.56-40 requires the national plant protection organizations (NPPOs) of Central American countries exporting peppers to the United States to inspect growing sites or greenhouses for certain pests prior to harvest. We proposed to add Panama to the list of countries eligible to export peppers under these conditions. Among the pests listed in § 319.56-40 are the weevil                     *Faustinus ovatipennis,*                     bacterial wilt, Andean potato mottle virus, Lantana mealybug, Passionvine mealybug, and the rust fungus                     *Puccinia pampeana.*

One commenter pointed out that there was no record of the presence of any of these pests in Panama; therefore, the NPPO of Panama should not be required to inspect for them.

Because the pest risk assessment (PRA) completed in relation to the importation of peppers from certain Central American countries was a regional PRA, the pest list includes those 12 pests of quarantine significance present in Central America, including Costa Rica, El Salvador, Guatemala, Honduras, Panama, and Nicaragua. We recognize that not all of the pests listed in the regulations may be present in each of those countries. The systems approach for the importation of peppers from each country includes the submission of a bilateral workplan to the Animal and Plant Health Inspection Service (APHIS) by the NPPO of each exporting country. That workplan will include the specific pests of concern for which inspection will be required as listed by country in the PRA. In this final rule, we are amending paragraphs (a)(2), (b)(3)(v), and (c)(3)(v) of the regulations, which provide for the pre-harvest inspections, to reflect this process.

## Mitigation Measures for Pea Leafminer

                    One of the pests of concern listed in § 319.56-40 is pea leafminer (                    *Liriomyza huidobrensis*). A commenter suggested that this pest is of particular concern for purposes of potential infestation and detection for several reasons: Larvae in this family are typically not identified beyond the family level, thus leaving them indistinguishable from other pests in this family during early stages of development; the 1.6 mm screening required to be placed across all openings in the pest-exclusionary greenhouses might not be sufficiently small to exclude the insect; and the pea leafminer's early larval stages and associated mines are relatively small, therefore making their potential detection via inspection at origin and destination problematic.                

                    For those varieties of peppers that are listed in the regulations and imported from areas in which Mediterranean fruit fly (Medfly,                     *Ceratitis capitata*) and/or Mexican fruit fly (Mexfly,                     *Anastrepha ludens*) are considered to exist, production sites must consist of pest-exclusionary greenhouses, which must have double self-closing doors and have all other openings and vents covered with 1.6 mm (or less) screening. The screening requirements listed in the regulations are intended only to provide protection from infestation by Medfly or Mexfly. However, the other mitigation measures established in the systems approach provide protection against a number of pests, including pea leafminer. Those measures include pre-harvest inspection, shipping procedures, and port-of-entry inspection, which provide an appropriate cumulative level of protection.                

In reference to the commenter's concern about the difficulty of detecting the presence of pea leafminer based on visual inspection, we are confident that pre-harvest inspections coupled with port-of-entry inspections will prove effective. In addition, pea leafminer infestations principally occur in the leaves and not the fruit of the pepper plant, reducing the risk that imported peppers will be infested with pea leafminer. Finally, the systems approach was established in 2004 to allow for the importation of peppers from Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. Based on our experience inspecting for pea leafminer in shipments of peppers from those countries, we are confident that we will continue to successfully prevent the entry of any infested shipments.

## Inspection

The regulations require that pepper production sites and shipments be inspected prior to harvest by the NPPO for pests of concern. One commenter wanted to know what sort of training the inspectors in Panama were required to undergo.

APHIS has audited Panama's export program, including its inspector training, and has found it is sufficient to meet the conditions set forth in the systems approach in § 319.56-40. In addition, it should be noted that peppers from Panama will be inspected at the port of entry into the United States, providing a check on the efficacy of the inspection in Panama as well as another layer of phytosanitary protection.

Another commenter opposed the proposal, stating that, since sampling for inspection purposes will not be conducted on all of the peppers in each given shipment, the associated risk of pest entry into the United States is too great.

We disagree. The rate at which sampling is conducted has been determined to detect a 1 to 2 percent level of infestation with a 95 percent rate of confidence. Further, inspection of samples of peppers is only one element of the established systems approach. We are confident that the systems approach in § 319.56-40 will effectively mitigate the risk associated with peppers imported from Panama.

## General Comments

One commenter asked what specific measures would be enacted to ensure that the phytosanitary requirements for shipments of peppers from Panama would be properly monitored and met.

                    For those areas where Medfly or Mexfly are considered to exist, the systems approach provides that APHIS will maintain oversight of the program by participating in the approval and monitoring of production sites and by reviewing the trapping records that                           ( print page 52546)                        must be maintained for each site. For shipments of peppers from those areas that are free of Medfly or Mexfly, port-of-entry inspections will be conducted. If, through trapping records, site visits, or port-of-entry inspections, we find that any of the required mitigation measures are not being properly administered, we will suspend shipments from the offending sites.                

Another commenter observed that the measures established as elements of the systems approach were not individually preventative. An additional commenter stated that APHIS should not allow any commodities to enter the United States without treatment.

Under a systems approach, a set of phytosanitary conditions, at least two of which have an independent effect in mitigating the pest risk associated with the movement of commodities, is specified. Accordingly, each individual measure assigned under a systems approach is designed to work in concert with at least one other element of the systems approach to achieve the appropriate level of phytosanitary security. We are confident that the systems approach in § 319.56-40 will effectively mitigate the risk associated with peppers imported from Panama, as it has for peppers from Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua.

One commenter, from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, stated that U.S. stakeholders from those areas potentially affected by any pest or disease outbreak from imported commodities should be invited to participate in site visits prior to the proposal of any rulemakings such as the one finalized by this document.

APHIS is committed to a transparent process and an inclusive role for stakeholders in our risk analysis process. To that end, we are currently considering ways to facilitate further stakeholder involvement, including site visits, during the initial stages of the development of PRAs. However, since this comment relates to the structure of APHIS's overall risk analysis process, and not to the importation of peppers from Panama, it is outside the scope of the current rulemaking.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

## Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

                    In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under                     **FOR FURTHER INFORMATION CONTACT**                    .                

Panama exported an average of about 20 metric tons (MT) of peppers to the United States annually from 1998 to 2001. The United States has not imported peppers from Panama since 2001. In the economic analysis, we model three levels of pepper exports to the United States from Panama, of increasing magnitude: (i) 20 MT; (ii) the maximum annual quantity exported by Panama to all countries in the most recent years it had export data (29 MT); and (iii) 10 times the maximum quantity exported (290 MT). The largest assumed level of U.S. imports is less than 0.02 percent of average annual U.S. consumption. Even when assuming the largest import quantity and no displacement of imports from other countries, the welfare loss for U.S. small-entity producers would be equivalent to less than 0.05 percent of their average revenue. U.S. producers of peppers are predominantly small. Other small entities that could be affected by the rule include fresh pepper importers.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

## Executive Order 12988

This final rule allows peppers to be imported into the United States from Panama. State and local laws and regulations regarding peppers imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public, and remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

## Paperwork Reduction Act

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

# List of Subjects in 7 CFR Part 319

      - Coffee
      - Cotton
      - Fruits
      - Imports
      - Logs
      - Nursery stock
      - Plant diseases and pests
      - Quarantine
      - Reporting and recordkeeping requirements
      - Rice
      - Vegetables

Accordingly, we are amending 7 CFR part 319 as follows:

# PART 319—FOREIGN QUARANTINE NOTICES

1. The authority citation for part 319 continues to read as follows: 

Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

2. Section 319.56-40 is amended by revising the introductory text and paragraphs (a)(2), (b)(3)(v), and (c)(3)(v) to read as follows: 

§ 319.56-40 

                            Fresh peppers (                            *Capsicum*                             spp.) may be imported into the United States from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama only under the following conditions and in accordance with all other applicable provisions of this subpart:                        

(a) * * *

                            (2) A pre-harvest inspection of the growing site must be conducted by the national plant protection organization (NPPO) of the exporting country for those pests listed in the bilateral workplan provided to APHIS by the NPPO of the exporting country, including any of the following pests: The weevil                             *Faustinus ovatipennis,*                             pea leafminer, tomato fruit borer, lantana mealybug, passionvine mealybug, melon thrips, bacterial wilt, the rust fungus                             *Puccinia pampeana,*                             Andean potato mottle virus, and tomato severe leaf curl virus. If any of the pests listed in the workplan are found to be generally infesting the growing site, the NPPO may not allow export from that production site until the NPPO has determined that risk mitigation has been achieved.                        

* * * * *

(b) * * *

(3) * * *

                            (v) The greenhouse must be inspected prior to harvest for those pests listed in the bilateral workplan provided to APHIS by the NPPO of the exporting country, including any of the following pests: The weevil                             *Faustinus ovatipennis,*                             pea leafminer, tomato fruit borer, lantana mealybug, passionvine                                   ( print page 52547)                                mealybug, melon thrips, bacterial wilt, the rust fungus                             *Puccinia pampeana,*                             Andean potato mottle virus, and tomato severe leaf curl virus. If any of pests listed in the workplan, or other quarantine pests, are found to be generally infesting the greenhouse, export from that production site will be halted until the exporting country's NPPO determines that the pest risk has been mitigated.                        

* * * * *

(c) * * *

(3) * * *

                            (v) The greenhouse must be inspected prior to harvest for those pests listed in the bilateral workplan provided to APHIS by the NPPO of the exporting country, including any of the following pests: The weevil                             *Faustinus ovatipennis,*                             pea leafminer, tomato fruit borer, lantana mealybug, passionvine mealybug, melon thrips bacterial wilt, the rust fungus                             *Puccinia pampeana,*                             Andean potato mottle virus, and tomato severe leaf curl virus. If any of the pests listed in the workplan, or other quarantine pests, are found to be generally infesting the greenhouse, export from that production site will be halted until the exporting country's NPPO determines that the pest risk has been mitigated.                        

* * * * *

Done in Washington, DC, this 17th day of August 2011.

Gregory L. Parham,

Administrator, Animal and Plant Health Inspection Service.

# Footnotes

1.                             To view the proposed rule and the comments we received, go to                         *http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS-2010-0002.*
        Back to Citation      

[FR Doc. 2011-21522 Filed 8-22-11; 8:45 am]

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