[Federal Register Volume 70, Number 196 (Wednesday, October 12, 2005)]
[Proposed Rules]
[Pages 59283-59290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20388]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 05-003-1]


Importation of Peppers From Certain Central American Countries

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We are proposing to amend the regulations governing the 
importation of fruits and vegetables in order to allow certain types of 
peppers grown in approved registered production sites in Costa Rica, El 
Salvador, Guatemala, Honduras, and Nicaragua to be imported into the 
United States without treatment. The conditions to which the proposed 
importation of peppers would be subject, including trapping, pre-
harvest inspection, and shipping procedures, are designed to prevent 
the introduction of quarantine pests into the United States. This 
action would allow for the importation of peppers from those countries 
in Central America while continuing to provide protection against the 
introduction of quarantine pests into the United States.

DATES: We will consider all comments that we receive on or before 
December 12, 2005.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2005-0095 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 05-003-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 05-003-1.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import 
Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 
River Road Unit 140, Riverdale, MD 20737-1228; (301) 734-8262.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 
though 319.56-8, 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.
    We are proposing to amend the regulations to allow the importation 
of peppers (Capsicum spp.) from Costa Rica, El Salvador, Guatemala, 
Honduras, and Nicaragua under certain conditions that would be set 
forth in a new Sec.  319.56-2nn. The quarantine pests of concern for 
peppers from those countries, as identified in a pest risk assessment 
prepared for this proposed rule,\1\ are the Mexican fruit fly (Mexfly, 
Anastrepha ludens) for certain types of peppers, Mediterranean fruit 
fly (Medfly, Ceratitis capitata), the weevil Faustinus ovatipennis, pea 
leafminer (Liriomyza huidobrensis), tomato fruit borer (Neoleucinodes 
elegantalis), banana moth (Opogona sacchari), latana mealybug 
(Phenacoccus parvus), passionvine mealybug (Planococcus minor), melon 
thrips (Thrips palmi), the rust fungus Puccinia pampeana, Andean potato 
mottle virus, and tomato yellow mosaic virus.
---------------------------------------------------------------------------

    \1\ The pest risk assessment, titled ``Importation of Fresh 
Pepper Fruit with Stems (Capsicum annuum L., C. frutescens L., C. 
baccatum L., C. pubescens Ruiz & Pav., and C. chinense Jacq.) from 
Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua into the 
United States,'' may be viewed on the Regulations.gov site (see 
ADDRESSES above for instructions for accessing Regulations.gov) or 
on the APHIS Web site at http://www.aphis.usda.gov/ppq/pra/draft/.
---------------------------------------------------------------------------

    To mitigate the risks presented by Mexfly and Medfly, we have 
developed a specific systems approach, which is described below. The 
remaining pests exhibit symptoms that are macroscopic and detectable 
upon visual inspection in the production areas or during pre-export or 
port-of-entry inspections. Specifically:
     The weevil Faustinus ovatipennis feeds on leaves, stem, 
inflorescence, and fruit. Both larvae and adults are external feeders 
and, as a result, easily observed.
     Pea leafminers spend a majority of their life cycle in 
larval form, mining host leaves. These mines are easily detectable via 
visual inspection.
     Tomato fruit borer larvae penetrate the fruit and may 
cause the fruit to fall

[[Page 59284]]

or become otherwise unmarketable. More mature larvae create large exit 
holes in the fruit that can be easily detected. In addition, the screen 
size required by the systems approach as described below is too small 
to allow the entry of adult tomato fruit borers.
     The banana moth mines plant stems, causing leaf fall and 
allowing pathogens to colonize and destroy affected plants. Infected 
plants will not produce quality fruit suitable for export. In addition, 
the screen size required by the systems approach as described below is 
too small to allow the entry of adult banana moths.
     Latana mealybug and passionvine mealybug are both external 
pests that are white in color. They are easily detectable on the darker 
skin of the host. In addition, these pests may also cause deformities 
in the plant, making infestation obvious.
     Melon thrips cause leaves to yellow and die. Terminal bud 
growth may be arrested and fruits may be scarred or deformed.
     The rust fungus Puccinia pampeana causes yellow or orange 
rust pustules to form on the pepper fruit stem which are easily 
detectable via visual inspection.
     The Andean potato mottle virus and tomato yellow mosaic 
virus are easily observable on mature plants in the field. Symptoms 
include mottling of the plant, mosaic coloring, and other plant 
deformities. In many cases the fruit will not develop and the plants 
themselves may be dwarfed.
    We have developed the following phytosanitary measures to guard 
against the entry of Medfly and Mexfly in shipments of peppers from 
those countries into the United States. The proposed measures vary, 
depending upon area freedom from Medfly and Mexfly. Capsicum pubescens 
(commonly referred to as rocoto pepper), a preferred host for Mexfly 
and Medfly, would be allowed entry only if grown in a certified pest-
free greenhouse, whereas field-grown Capsicum annuum (e.g., bell, wax, 
pimento, jalapeno), Capsicum frutescens (e.g., tabasco, malagueta), 
Capsicum baccatum (e.g., bird pepper, aji), and Capsicum chinense 
(e.g., habanero, scotch bonnet) would be permitted under certain 
circumstances.

Areas Where Medfly Is Present

    C. annuum, C. frutescens, C. baccatum, C. chinense, and C. 
pubescens grown in an area that has not been determined to be free of 
Medfly would be required to be grown in approved production sites 
registered with the national plant protection organization (NPPO) of 
the exporting country and would be subject to the systems approach 
detailed below. Initial approval of the production sites would be 
completed jointly by the exporting country's NPPO and the Animal and 
Plant Health Inspection Service (APHIS). Representatives of the 
exporting country's NPPO would have to visit and inspect the production 
sites monthly, starting 2 months before harvest and continuing through 
until the end of the shipping season. APHIS could monitor the 
production sites at any time during this period.
    Pepper production sites would have to consist of pest exclusionary 
greenhouses with self-closing double doors. All additional openings 
would be required to be covered with 1.6 (or less) millimeter 
screening. Registered sites would have to contain traps with an 
approved protein bait for the detection of fruit flies within the 
greenhouses at a density of four traps per hectare, with a minimum of 
at least two traps per greenhouse. Traps would have to be serviced on a 
weekly basis. In addition, Medfly traps with an approved protein bait 
would have to be placed inside a buffer area 500 meters wide around the 
registered production site, at a density of 1 trap per 10 hectares. 
These traps would have to be checked at least once every 7 days. At 
least one trap would have to be near the greenhouse. Traps would have 
to be set for at least 2 months prior to export and trapping would have 
to continue to the end of harvest. Capture of 0.7 or more Medflies per 
trap per week within the buffer zone would suspend or delay the 
harvest, depending on whether the harvest had begun, for consignments 
of peppers from that production site until APHIS and the exporting 
country's NPPO determine that the pest risk has been mitigated.
    If a single Medfly is detected inside a registered production site 
or in a consignment, the registered production site would lose its 
ability to export peppers to the United States until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation has 
been achieved.
    For the weevil Faustinus ovatipennis, pea leafminer, tomato fruit 
borer, banana moth, latana mealybug, passionvine mealybug, melon 
thrips, the rust fungus Puccinia pampeana, Andean potato mottle virus, 
and tomato yellow mosaic virus, the production site would have to be 
inspected prior to harvest, and if any of these pests or any other 
quarantine pests are found to be generally infesting the production 
site, the NPPO would not allow export from that production site until 
risk mitigation has been achieved. If the NPPO detects any quarantine 
pests in the consignment, the shipment would be deemed ineligible for 
export to the United States.
    The exporting country's NPPO would have to maintain records of trap 
placement, checking of traps, and any Medfly captures. In addition, the 
exporting country's NPPO would have to maintain an APHIS-approved 
quality control program to monitor or audit the trapping program. The 
trapping records would have to be maintained for APHIS's review.
    We would require that the peppers be packed within 24 hours of 
harvest in a pest exclusionary packinghouse. The peppers would have to 
be safeguarded by an insect-proof mesh screen or plastic tarpaulin 
while in transit from the production site to the packinghouse and while 
awaiting packing. The peppers would have to be packed in insect-proof 
cartons or containers, or covered with insect-proof mesh or plastic 
tarpaulin, for transit to the United States. These safeguards would 
have to remain intact until arrival in the United States or the 
shipment would not be allowed to enter the United States.
    During the time the packinghouse is in use for exporting peppers to 
the United States, the packinghouse could accept peppers only from 
registered approved production sites.
    The exporting country's NPPO would be responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers would have to be accompanied by a 
phytosanitary certificate issued by the NPPO and bearing the 
declaration, ``These peppers were grown in an approved production site 
and the shipment has been inspected and found free of the pests listed 
in the requirements.'' The shipping box would have to be labeled with 
the identity of the production site.

Areas Where Mexfly Is Present

    C. pubescens grown in an area that has not been determined to be 
free of Mexfly \2\ would have to be grown in approved production sites 
registered with the NPPO of the exporting country and would be subject 
to the systems approach detailed below. Initial approval of the 
production sites would be completed jointly by the exporting country's 
NPPO and APHIS. Representatives of the exporting country's NPPO would 
have to visit and inspect the production sites monthly,

[[Page 59285]]

starting 2 months before harvest and continuing through until the end 
of the shipping season. APHIS could monitor the production sites at any 
time during this period.
---------------------------------------------------------------------------

    \2\ Currently, there are no areas covered by this proposed rule 
that contain Mexfly free zones.
---------------------------------------------------------------------------

    Pepper production sites would have to consist of pest exclusionary 
greenhouses with self-closing double doors. All additional openings 
would be required to be covered with 1.6 (or less) millimeter 
screening. Registered sites would have to contain traps with an 
approved protein bait for the detection of fruit flies within the 
greenhouses at a density of four traps per hectare, with a minimum of 
at least two traps per greenhouse. Traps would have to be serviced on a 
weekly basis. In addition, Mexfly traps with an approved protein bait 
would have to be placed inside a buffer area 500 meters wide around the 
registered production site, at a density of 1 trap per 10 hectares. 
These traps would have to be checked at least once every 7 days. At 
least one trap would have to be near the greenhouse. Traps would have 
to be set for at least 2 months prior to export and trapping would have 
to continue to the end of harvest. Capture of 0.7 or more Mexflies per 
trap per week within the buffer zone would suspend or delay the 
harvest, depending on whether the harvest had begun, for consignments 
of peppers from that production site until APHIS and the exporting 
country's NPPO determine that the pest risk has been mitigated.
    If a single Mexfly is detected inside a registered production site 
or in a consignment, the registered production site would lose its 
ability to export peppers to the United States until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation is 
achieved. For the other pests of concern listed above, the greenhouse 
would have to be inspected prior to harvest, and if any of these pests 
or any other quarantine pests are found to be generally infesting the 
greenhouse, the NPPO would not allow export from that production site 
until risk mitigation has been achieved. If the NPPO detected any 
quarantine pests in the consignment, the shipment would be deemed 
ineligible for export to the United States.
    The exporting country's NPPO would have to maintain records of trap 
placement, checking of traps, and any Mexfly captures. In addition, the 
exporting country's NPPO would have to maintain an APHIS-approved 
quality control program to monitor or audit the trapping program. The 
trapping records would have to be maintained for APHIS's review.
    We would require that the peppers be packed within 24 hours of 
harvest in a pest exclusionary packinghouse. The peppers would have to 
be safeguarded by an insect-proof mesh screen or plastic tarpaulin 
while in transit from the production site to the packinghouse and while 
awaiting packing. The peppers would have to be packed in insect-proof 
cartons or containers, or covered with insect-proof mesh or plastic 
tarpaulin, for transit to the United States. These safeguards would 
have to remain intact until arrival in the United States or the 
shipment would not be allowed to enter the United States.
    During the time the packinghouse is in use for exporting peppers to 
the United States, the packinghouse could accept peppers only from 
registered approved production sites.
    The exporting country's NPPO would be responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers would have to be accompanied by a 
phytosanitary certificate issued by the NPPO and bearing the 
declaration, ``These peppers were grown in an approved production site 
and the shipment has been inspected and found free of the pests listed 
in the requirements.'' The shipping box would have to be labeled with 
the identity of the production site.

Medfly Free Areas

    We would allow C. annuum, C. frutescens, C. baccatum, and C. 
chinense grown in a Medfly-free area to be imported under conditions 
less stringent than those described above for peppers grown in areas 
where Medfly is present. The peppers would have to be grown and packed 
in an area that APHIS has determined to be free of Medfly in accordance 
with the procedures described in Sec.  319.56-2(f); currently, Honduras 
and Guatemala are the only Central American countries covered by this 
proposal that contain such areas.
    A pre-harvest inspection of the production site would be conducted 
by the NPPO for the detection of Medfly. If Medfly is found to be 
generally infesting the production site, the NPPO would not allow 
export from that production site until it is determined that risk 
mitigation is achieved. For the other pests of concern listed above 
(i.e., those pests other than Medfly and Mexfly), the production site 
would have to be inspected prior to harvest, and if any of these pests 
or any other quarantine pests are found to be generally infesting the 
production site, the NPPO would not allow export from that production 
site until risk mitigation has been achieved. If the NPPO detected any 
quarantine pests in the consignment, the shipment would be deemed 
ineligible for export to the United States.
    We would require that peppers be packed in insect-proof cartons or 
containers, or covered with insect-proof mesh or plastic tarpaulin, for 
transit to the United States. These safeguards would have to remain 
intact until arrival in the United States or the shipment would not be 
allowed to enter the United States. These measures would be necessary 
since, although the production area is Medfly-free, the peppers would 
need to be protected against infestation while in transit.
    The exporting country's NPPO would be responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers would have to be accompanied by a 
phytosanitary certificate issued by the NPPO and bearing the 
declaration, ``These peppers were grown in an area recognized to be 
free of Medfly and the shipment has been inspected and found free of 
the pests listed in the requirements.'' The shipping box would have to 
be labeled with the identity of the production site.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of their rules on small businesses, 
organizations, and governmental jurisdictions. In accordance with 
section 603 of the RFA, we have prepared an initial regulatory 
flexibility analysis describing the expected impact of the changes 
proposed in this document on small entities.
    Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary 
of Agriculture is authorized to regulate the importation of plants, 
plant products, and other articles to prevent the introduction of plant 
pests and noxious weeds.
    We are proposing to amend the regulations governing the importation 
of fruits and vegetables in order to allow certain types of peppers 
grown in approved registered production sites in Costa Rica, El 
Salvador, Guatemala, Honduras, and Nicaragua to be imported into the 
United States without treatment. The conditions to which the proposed 
importation of peppers would

[[Page 59286]]

be subject, including trapping, pre-harvest inspection, and shipping 
procedures, are designed to prevent the introduction of quarantine 
pests into the United States. This action would allow for the 
importation of peppers from those countries in Central America while 
continuing to provide protection against the introduction of quarantine 
pests into the United States.

Central American Production and Exports

    While agriculture is an important industry in the countries that 
would be affected by this rule, it does not account for the largest 
share of gross domestic product in any of the countries. Peppers do not 
appear to be major crops in those Central American countries. However, 
production and exports of both commodities are following upward trends.
    Over the past four decades, pepper production in Central America 
has been on the rise. For the last 11 years, exports of peppers from 
this region have also increased. However, much of the increase in 
exports is a reflection of increased trade among the countries in this 
region. During this time period, an average of 62.23 percent of exports 
were intra-regional. Although this percentage has fluctuated 
substantially, the percentage of peppers exported from Central American 
countries to other Central American countries has been generally above 
70 percent since 1997 with the exception of 2002. In 2003, 
approximately 96 percent of all Central American pepper exports were 
sent to other countries within the region.
    It is estimated that about 31,040 metric tons of peppers may be 
imported into the United States each year from Costa Rica, El Salvador, 
Guatemala, Honduras, and Nicaragua as a result of the proposed rule.\3\
---------------------------------------------------------------------------

    \3\ These estimates were provided by the proposed exporting 
countries and have been aggregated for the purpose of this analysis.
---------------------------------------------------------------------------

U.S. Production and Trade Levels

    In 2004, U.S. total pepper production totaled 843,696 metric tons 
(Table 1). While domestic production has fluctuated from year to year 
and has declined or remained steady since 2000, there has been an 
upward trend in domestic pepper production over the last 9 years. 
Imports have also been on the rise, and these have been increasing at a 
rapid pace since 1996. Per capita consumption of bell peppers has 
remained fairly constant over the past nine years, while consumption of 
chile peppers has been growing at a steady pace since 1996, as seen in 
Table 1. Although the levels of production, imports, and per capita 
consumption are reported for all pepper varieties, information on 
exports and domestic consumption is not available. This is only 
reported in the case of bell peppers, and is shown in Table 2. This 
table shows that most production is consumed domestically, with 
approximately 10 percent devoted to exports. Additionally, as mentioned 
above, per capita consumption of bell peppers has been steady despite 
the overall increase in imports.

            Table 1.--U.S. Production, Imports, and Per Capita Consumption of All Peppers, 1996-2004
----------------------------------------------------------------------------------------------------------------
                                  Production and imports (metric          Per capita consumption (pounds)
                                               tons)             -----------------------------------------------
              Year               --------------------------------
                                    Production        Imports      Bell peppers    Chili peppers       Total
----------------------------------------------------------------------------------------------------------------
1996............................         752,976         277,334             7.1             4.6            11.7
1997............................         680,400         290,557             6.4             4.5            10.9
1998............................         662,256         329,336             6.4             4.7            11.1
1999............................         707,616         342,128             6.7             4.7            11.4
2000............................         911,736         346,660             7.0             5.1            12.1
2001............................         857,304         366,514             6.9             5.1            12.0
2002............................         843,696         408,499             6.8             5.7            12.5
2003............................         843,696         426,197             6.9             5.5            12.4
2004............................         843,696         445,982             7.1             6.0           13.1
----------------------------------------------------------------------------------------------------------------
Source: USDA/ERS, ``Vegetables and Melons Yearbook,'' http://usda.mannlib.cornell.edu/data-sets/specialty/89011/
  .


                                         Table 2.--U.S. Supply and Utilization of Fresh Bell Peppers, 2000-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Supply                                        Utilization
                                                         -----------------------------------------------------------------------------------------------
                          Year                                                                                                            Per capita use
                                                            Production        Imports          Total          Exports        Domestic        (pounds)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              (Metric tons)
-----------------------------------------------------------------------------------------------------------------------------------------
1996....................................................         754,745         171,143         925,888          60,465         865,423             7.1
1997....................................................         678,540         179,217         857,758          60,692         797,066             6.4
1998....................................................         660,260         199,085         859,345          57,970         801,375             6.4
1999....................................................         705,892         206,524         912,416          66,309         846,107             6.7
2000....................................................         765,631         198,190         963,822          71,479         892,342             7.0
2001....................................................         748,168         215,596         963,764          73,347         890,417             6.9
2002....................................................         710,700         249,979         960,679          73,166         887,514             6.8
2003....................................................         731,112         245,715         976,828          72,077         904,751             6.9
2004....................................................         762,184         258,053       1,020,237          73,438         946,799            7.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USDA/ERS, ``Vegetables and Melons Yearbook,'' http://usda.mannlib.cornell.edu/data-sets/specialty/89011/.


[[Page 59287]]

    From 1995 to 2003, most of the peppers imported into the United 
States came from Mexico, Canada, and the Netherlands, with the majority 
supplied by Mexico. Given the close ties created by the North American 
Free Trade Agreement, these trading patterns are not surprising.
    It is unlikely that the proposed changes would lead to dramatic 
increases in U.S. import levels of peppers. The amount of peppers 
expected to be imported from that region (31,040 metric tons) 
represents approximately 6.95 percent of the 2004 import level (445,982 
metric tons). Thus, Central American imports are not expected to 
command a large portion of the U.S. imported pepper market.

Effects on Small Entities

    This proposed rule would affect domestic producers of peppers as 
well as importers that deal with these commodities. It is likely that 
the entities affected would be small according to Small Business 
Administration (SBA) guidelines. As detailed below, information 
available to APHIS indicates that the effects on these small entities 
would not be significant.
    Two alternatives to the proposed course of action are as follows: 
Maintaining the regulations as they are currently written regarding the 
importation of peppers from these Central American countries or 
allowing importation without establishing the proposed risk 
mitigations.
    The first alternative would maintain current safeguards against the 
entry of quarantine pests. However, this option would also mean that 
those specified Central American countries as well as the United States 
would forgo the economic benefits expected to be afforded by the 
proposed trade.
    Allowing importation of fresh peppers from certain Central American 
countries under phytosanitary requirements less restrictive than are 
proposed could potentially lead to the introduction of pests not 
currently found in the United States. This option could result in 
significant damage and costs to domestic production and is not 
desirable for those reasons.
    Affected U.S. pepper producers are expected to be small based on 
the 2002 Census of Agriculture data and SBA guidelines for entities in 
two farm categories: Other Vegetable (except Potato) and Melon Farming 
(North American Industry Classification System [NAICS] number 111219) 
and Other Food Crops Grown Under Cover (NAICS number 111419). The SBA 
classifies producers in these farm categories as small entities if 
their total annual sales are no more than $750,000. APHIS does not have 
information on the size distribution of domestic pepper producers, but 
according to 2002 Census data, there were a total of 2,128,892 farms in 
the United States.\4\ Of this number, approximately 97 percent had 
total annual sales of less than $500,000 in 2002, which is well below 
the SBA's small entity threshold for commodity farms.\5\ This indicates 
that the majority of farms are considered small by SBA standards, and 
it is reasonable to assume that most of the 4,748 pepper farms that 
could be affected by the proposed rule would also qualify as small. In 
the case of fruit and vegetable wholesalers (NAICS number 422480),\6\ 
those entities with fewer than 100 employees are considered small by 
SBA standards.\7\ In 1997, there were a total of 4,811 fruit and 
vegetable wholesale trade farms in the United States.\8\ Of these 
farms, 4,610 or 95.8 percent employed fewer than 100 employees and were 
considered small by SBA standards. Between 1997 and 2002 there is not 
likely to have been substantial changes in the industry. Therefore, 
domestic producers and importers that may be affected by this proposed 
rule are predominantly small entities.
---------------------------------------------------------------------------

    \4\ This number represents the total number of farms in the 
United States, thus including barley, buckwheat, corn, millet, oats, 
rice, soybean, and sugarcane farms.
    \5\ Source: SBA and 2002 Census of Agriculture.
    \6\ Note that this NAICS code relates to the 1997 Economic 
Census. The 2002 NAICS code for this group is 424480.
    \7\ For NAICS 424480, SBA guidelines state that an entity with 
not more than 100 employees should be considered small unless that 
entity is a government contractor. In this case, the size standard 
increases to 500 employees. However, in this instance, it is fair to 
assume that fruit and vegetable importers will not be under 
government contract since it is against regulations for imports to 
be used in relevant government programs (e.g., school lunch 
programs).
    \8\ Source: SBA and 1997 Economic Census.
---------------------------------------------------------------------------

    Economic analysis of the expected increase in imports of peppers 
from Central America shows that the proposed importation of these 
commodities would lead to negligible changes in domestic prices. Based 
on historical consumption data, an increase in imports of this 
magnitude would lead to a decrease in price of approximately $0.01 to 
$0.02 per pound at the retail level, based on an average price of $1.15 
per pound over the last 25 years.
    Although domestic producers may face slightly lower prices as a 
result of the proposed increase in the pepper supply, these price 
changes are expected to be negligible. APHIS welcomes public comment on 
these preliminary estimates. Changes of the magnitude presented here 
should not have large repercussions for either domestic producers or 
importers of peppers.
    This proposed rule contains information collection or recordkeeping 
requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12988

    This proposed rule would allow certain types of peppers from Costa 
Rica, El Salvador, Guatemala, Honduras, and Nicaragua to be imported 
into the United States. If this proposed rule is adopted, State and 
local laws and regulations regarding peppers imported under this rule 
would 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 would 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. If 
this proposed rule is adopted, 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.

National Environmental Policy Act

    To provide the public with documentation of APHIS' review and 
analysis of any potential environmental impacts associated with the 
proposed importation of peppers from Central America, we have prepared 
an environmental assessment. The environmental assessment, entitled 
``Proposed Rule for the Importation of Peppers from Central America,'' 
was prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment may be viewed on the Regulations.gov 
Web site or in our reading room (see ADDRESSES above for instructions 
for accessing Regulations.gov and for information on the location and 
hours of the reading room). You may request paper copies of the 
environmental assessment by calling or writing to the person listed 
under FOR FURTHER INFORMATION CONTACT. Please refer to the title of the 
environmental assessment when requesting copies.

[[Page 59288]]

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 05-003-1. 
Please send a copy of your comments to: (1) Docket No. 05-003-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    In this document, we are proposing to allow certain types of 
peppers grown in approved registered production sites in Costa Rica, El 
Salvador, Guatemala, Honduras, and Nicaragua to be imported into the 
United States without treatment, under certain conditions. Those 
conditions include trapping, pre-harvest inspection, and shipping 
procedures designed to prevent the introduction of quarantine pests 
into the United States. These precautions, along with other 
requirements, would allow for the importation of peppers from those 
countries in Central America while continuing to provide protection 
against the introduction of quarantine pests into the United States.
    Allowing peppers to be imported would necessitate the use of 
certain information collection activities, including the completion of 
pre-harvest inspections, phytosanitary certificates, and fruit fly 
monitoring records.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.0037537 hours per response.
    Respondents: Importers, producers, national plant protection 
organizations.
    Estimated annual number of respondents: 200.
    Estimated annual number of responses per respondent: 3,994.625.
    Estimated annual number of responses: 798,925.
    Estimated total annual burden on respondents: 2,299 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

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 propose to amend 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

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

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

    2. A new Sec.  319.56-2nn would be added as follows:


Sec.  319.56-2nn  Administrative instructions: Conditions governing the 
entry of peppers from certain Central American countries.

    Fresh peppers (Capsicum spp.) may be imported into the United 
States from Costa Rica, El Salvador, Guatemala, Honduras, and 
Nicaragua, only under the following conditions:
    (a) For peppers of the species Capsicum annuum, Capsicum 
frutescens, Capsicum baccatum, and Capsicum chinense from areas free of 
Mediterranean fruit fly (Medfly), terms of entry are as follows:
    (1) The peppers must be grown and packed in an area that has been 
determined by APHIS to be free of Mediterranean fruit fly (Medfly) in 
accordance with the procedures described in Sec.  319.56-2(f) of this 
subpart.
    (2) A pre-harvest inspection of the growing site must be conducted 
by the national plant protection organization (NPPO) of the exporting 
country for the weevil Faustinus ovatipennis, pea leafminer, tomato 
fruit borer, banana moth, latana mealybug, passionvine mealybug, melon 
thrips, the rust fungus Puccinia pampeana, Andean potato mottle virus, 
and tomato yellow mosaic virus, and if these pests 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.
    (3) The peppers must be packed in insect-proof cartons or 
containers or covered with insect proof mesh or plastic tarpaulin at 
the packinghouse for transit to the United States. These safeguards 
must remain intact until arrival in the United States.
    (4) The exporting country's NPPO is responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers must be accompanied by a phytosanitary 
certificate issued by the NPPO and bearing the declaration, ``These 
peppers were grown in an area recognized to be free of Medfly and the 
shipment has been inspected and found free of the pests listed in the 
requirements.''
    (b) For peppers of the species Capsicum annuum, Capsicum 
frutescens, Capsicum baccatum, Capsicum chinense, and Capsicum 
pubescens from areas in which Medfly is considered to exist:
    (1) The peppers must be grown in approved production sites 
registered with the NPPO of the exporting country. Initial approval of 
the production sites will be completed jointly by the exporting 
country's NPPO and APHIS. The exporting country's NPPO will visit

[[Page 59289]]

and inspect the production sites monthly, starting 2 months before 
harvest and continuing through until the end of the shipping season. 
APHIS may monitor the production sites at any time during this period.
    (2) Pepper production sites must consist of pest exclusionary 
greenhouses, which must have self-closing double doors and have all 
other openings and vents covered with 1.6 (or less) mm screening.
    (3) Registered sites must contain traps for the detection of Medfly 
both within and around the production site.
    (i) Traps with an approved protein bait must be placed inside the 
greenhouses at a density of four traps per hectare, with a minimum of 
two traps per greenhouse. Traps must be serviced on a weekly basis.
    (ii) If a single Medfly is detected inside a registered production 
site or in a consignment, the registered production site will lose its 
ability to export peppers to the United States until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation is 
achieved.
    (iii) Medfly traps with an approved protein bait must be placed 
inside a buffer area 500 meters wide around the registered production 
site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. 
These traps must be checked at least every 7 days. At least one of 
these traps must be near the greenhouse. Traps must be set for at least 
2 months before export and trapping must continue to the end of the 
harvest.
    (iv) Capture of 0.7 or more Medflies per trap per week will delay 
or suspend the harvest, depending on whether harvest has begun, for 
consignments of peppers from that production site until APHIS and the 
exporting country's NPPO can agree that the pest risk has been 
mitigated.
    (v) The greenhouse must be inspected prior to harvest for the 
weevil Faustinus ovatipennis, pea leafminer, tomato fruit borer, banana 
moth, latana mealybug, passionvine mealybug, melon thrips, the rust 
fungus Puccinia pampeana, Andean potato mottle virus, and tomato yellow 
mosaic virus. If any of these pests, 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.
    (4) The exporting country's NPPO must maintain records of trap 
placement, checking of traps, and any Medfly captures. The exporting 
country's NPPO must maintain an APHIS-approved quality control program 
to monitor or audit the trapping program. The trapping records must be 
maintained for APHIS's review.
    (5) The peppers must be packed within 24 hours of harvest in a pest 
exclusionary packinghouse. The peppers must be safeguarded by an 
insect-proof mesh screen or plastic tarpaulin while in transit to the 
packinghouse and while awaiting packing. Peppers must be packed in 
insect-proof cartons or containers, or covered with insect-proof mesh 
or plastic tarpaulin, for transit to the United States. These 
safeguards must remain intact until arrival in the United States or the 
consignment will be denied entry into the United States.
    (6) During the time the packinghouse is in use for exporting 
peppers to the United States, the packinghouse may accept peppers only 
from registered approved production sites.
    (7) The exporting country's NPPO is responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers must be accompanied by a phytosanitary 
certificate issued by the NPPO and bearing the declaration, ``These 
peppers were grown in an approved production site and the shipment has 
been inspected and found free of the pests listed in the 
requirements.'' The shipping box must be labeled with the identity of 
the production site.
    (c) For peppers of the species Capsicum pubescens from areas in 
which Mexican fruit fly (Mexfly) is considered to exist:
    (1) The peppers must be grown in approved production sites 
registered with the NPPO of the exporting country. Initial approval of 
the production sites will be completed jointly by the exporting 
country's NPPO and APHIS. The exporting country's NPPO must visit and 
inspect the production sites monthly, starting 2 months before harvest 
and continuing through until the end of the shipping season. APHIS may 
monitor the production sites at any time during this period.
    (2) Pepper production sites must consist of pest exclusionary 
greenhouses, which must have self-closing double doors and have all 
other openings and vents covered with 1.6 (or less) mm screening.
    (3) Registered sites must contain traps for the detection of Mexfly 
both within and around the production site.
    (i) Traps with an approved protein bait must be placed inside the 
greenhouses at a density of four traps per hectare, with a minimum of 
two traps per greenhouse. Traps must be serviced on a weekly basis.
    (ii) If a single Mexfly is detected inside a registered production 
site or in a consignment, the registered production site will lose its 
ability to ship under the systems approach until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation is 
achieved.
    (iii) Mexfly traps with an approved protein bait must be placed 
inside a buffer area 500 meters wide around the registered production 
site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. 
These traps must be checked at least every 7 days. At least one of 
these traps must be near the greenhouse. Traps must be set for at least 
2 months before export and trapping must continue to the end of the 
harvest.
    (iv) Capture of 0.7 or more Mexflies per trap per week will delay 
or suspend the harvest, depending on whether harvest has begun, for 
consignments of peppers from that production site until APHIS and the 
exporting country's NPPO can agree that the pest risk has been 
mitigated.
    (v) The greenhouse must be inspected prior to harvest for the 
weevil Faustinus ovatipennis, pea leafminer, tomato fruit borer, banana 
moth, latana mealybug, passionvine mealybug, melon thrips, the rust 
fungus Puccinia pampeana, Andean potato mottle virus, and tomato yellow 
mosaic virus. If any of these pests, 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.
    (4) The exporting country's NPPO must maintain records of trap 
placement, checking of traps, and any Mexfly captures. The exporting 
country's NPPO must maintain an APHIS-approved quality control program 
to monitor or audit the trapping program. The trapping records must be 
maintained for APHIS's review.
    (5) The peppers must be packed within 24 hours of harvest in a pest 
exclusionary packinghouse. The peppers must be safeguarded by an 
insect-proof mesh screen or plastic tarpaulin while in transit to the 
packinghouse and while awaiting packing. Peppers must be packed in 
insect-proof cartons or containers, or covered with insect-proof mesh 
or plastic tarpaulin, for transit to the United States. These 
safeguards must remain intact until arrival in the United States or the 
consignment will be denied entry into the United States.
    (6) During the time the packinghouse is in use for exporting 
peppers to the United States, the packinghouse may

[[Page 59290]]

accept peppers only from registered approved production sites.
    (7) The exporting country's NPPO is responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of peppers must be accompanied by a phytosanitary 
certificate issued by the NPPO and bearing the declaration, ``These 
peppers were grown in an approved production site and the shipment has 
been inspected and found free of the pests listed in the 
requirements.'' The shipping box must be labeled with the identity of 
the production site.

    Done in Washington, DC, this 6th day of October 2005.
N.E. Gutierrez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-20388 Filed 10-11-05; 8:45 am]
BILLING CODE 3410-34-P