[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52544-52547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21522]


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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


Importation of Peppers From Panama

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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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

[[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 Sec.  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.
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    \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.
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    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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[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 Sec.  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

0
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.


0
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:


Sec.  319.56-40  Peppers from certain Central American countries.

    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

[[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.
[FR Doc. 2011-21522 Filed 8-22-11; 8:45 am]
BILLING CODE 3410-34-P