[Federal Register Volume 71, Number 98 (Monday, May 22, 2006)]
[Rules and Regulations]
[Pages 29241-29244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4718]



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 Rules and Regulations
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  Federal Register / Vol. 71, No. 98 / Monday, May 22, 2006 / Rules and 
Regulations  

[[Page 29241]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. 05-068-2]


Importation of Peppers From the Republic of Korea

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the fruits and vegetables regulations to allow 
the importation into the continental United States of peppers from the 
Republic of Korea under certain conditions. As a condition of entry, 
the peppers will have to be grown in approved insect-proof, pest-free 
greenhouses and packed in pest-exclusionary packinghouses. In addition, 
the peppers will have to be safeguarded against pest infestation during 
their movement from the production site to the packinghouse and from 
the packinghouse to the continental United States. This action will 
allow for the importation of peppers from the Republic of Korea into 
the continental United States while continuing to provide protection 
against the introduction of quarantine pests.

DATES: Effective Date: June 21, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Alex Belano, Import Specialist, 
Commodity Import Analysis and Operations, Plant Health Programs, PPQ, 
APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-
8758.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56 
through 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.
    On December 29, 2005, we published in the Federal Register (70 FR 
77069-77073, Docket No. 05-068-1) a proposal \1\ to amend the 
regulations to allow the importation of peppers from the Republic of 
Korea into the continental United States under certain conditions. As a 
condition of entry, we proposed that the peppers would have to be grown 
in approved insect-proof, pest-free greenhouses and packed in pest-
exclusionary packinghouses. In addition, we proposed that the peppers 
would have to be safeguarded against pest infestation during their 
movement from the production site to the packinghouse and from the 
packinghouse to the continental United States.
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov, click on the ``Advanced Search'' tab, 
and select ``Docket Search.'' In the Docket ID field, enter APHIS-
2005-0112, then click on ``Submit.'' Clicking on the Docket ID link 
in the search results page will produce a list of all documents in 
the docket.
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    We solicited comments concerning our proposal for 60 days ending 
February 27, 2006. We received two comments by that date. One comment 
was from a private citizen who questioned the need to import peppers 
from the Republic of Korea. The commenter stated generally that the 
United States should rely on its own pepper production, but did not 
otherwise address any issues germane to the proposal. The second 
commenter, from a State department of agriculture, expressed concern 
that Pepino mosaic virus could be transported into the United States on 
peppers from the Republic of Korea. Pepino mosaic virus has a narrow 
host range which includes tomato. As the commenter stated, it is not 
known for certain whether Capsicum species serve as hosts for the 
virus. In addition, the virus is reported to occur within the United 
States, including Florida, and is not under official control. APHIS 
regards fruit for consumption as an unlikely pathway for the 
establishment of Pepino mosaic virus and does not, therefore, restrict 
the interstate movement of U.S. tomatoes, even though tomato is an 
established host of the virus. Pepper is not a known host for Pepino 
mosaic virus; therefore, we believe pepper fruit for consumption is 
even less likely to serve as a pathway.
    The commenter also expressed concern that the pest risk assessment 
does not discuss the fungus Monilinia fructicola in any depth, given 
that the brown rot symptoms caused by M. fructicola are difficult to 
distinguish from the symptoms caused by M. fructigena, which is 
identified as a quarantine pest of concern in the pest risk assessment. 
M. fructicola is common within the United States and is not considered 
a quarantine pest. Fruit infected with M. fructicola exhibits symptoms 
of brown rot that would be visible upon inspection. Since, as the 
commenter notes, brown rot is also a symptom of M. fructigena, which is 
a quarantine pest addressed by this rule, peppers would not be accepted 
from any greenhouse where brown rot symptoms had been detected unless 
it is determined that the causal fungus is the nonquarantine species.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.


    Note: In our December 2005 proposed rule, we proposed to add the 
conditions governing the importation of peppers from the Republic of 
Korea as Sec.  319.56-2oo. In this final rule, those conditions are 
added as Sec.  319.56-2qq.

Executive Order 12866 and Regulatory Flexibility Act

    This 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.
    We are amending the fruits and vegetables regulations to allow the 
importation into the continental United States of peppers from the 
Republic of Korea (South Korea) under certain conditions. As a 
condition of entry, the peppers will have to be grown in approved 
insect-proof, pest-free greenhouses and packed in pest-exclusionary 
packinghouses. In addition, the peppers will have to be safeguarded 
against pest infestation during their movement from the production site 
to the packinghouse and from the packinghouse to the continental United 
States. This action will allow for the importation of peppers from 
South Korea into the

[[Page 29242]]

continental United States while continuing to provide protection 
against the introduction of quarantine pests.
    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 604 of the RFA, we have prepared a final regulatory flexibility 
analysis describing the expected impact of the changes in this rule on 
small entities. During the comment period for our proposed rule, we did 
not receive any comments pertaining to the initial regulatory 
flexibility analysis presented in that document.
    The peppers to be imported into the United States are greenhouse-
grown throughout South Korea. Based on information provided by the 
National Plant Quarantine Service (NPQS) of South Korea, we expect that 
red varieties or cultivars (`Spirit,' `Special,' `Jubilee') will 
comprise 60-70 percent of the peppers that will be exported to the 
United States from South Korea. Yellow pepper cultivars or varieties 
(`Fiesta,' `Romeca') will comprise 20-25 percent of exports, and orange 
(`Nassau,' `Emily,' `Boogie') pepper cultivars will comprise 5-10 
percent of the peppers shipped to the United States. The Netherlands is 
the seed source for the peppers grown in South Korea.
    The harvesting of the peppers will occur between November and July. 
The pepper fruits ready for export to the United States will be packed 
in standard boxes (usually 5kg/carton package) and stored under low 
temperature conditions. During distribution, temperatures will be 
maintained at 8-10 [deg]C. The peppers will then be transported from 
South Korea by ship, using refrigerated containers, to western parts of 
the United States, and via air containers to eastern parts of the 
United States.
    South Korea expects to export 250 metric tons of peppers per month, 
amounting to 3,000,000 kg annually. At 5 kg per carton, that will 
comprise 600,000 cartons per year, or about 600 40-foot container loads 
(assuming that each holds 1,000 cartons). This level of imports is 
small compared to current levels of production and imports into the 
United States.
    In 2004, a volume of 446,006,999 kg of peppers, valued at $663.6 
million, was imported into the United States. These imports included 
fresh or chilled fruits of the genus Capsicum or Pimienta. Mexico, 
Canada, the Netherlands, and Israel were the major exporting countries.
    Regarding commercial pepper production in the United States, the 
National Agricultural Statistics Service (NASS) (2005) reports the 
production of bell and chili peppers separately. In 2004, the 
production of bell peppers for fresh market and processing amounted to 
16,803,000 cwt \2\ (762,171,259 kg), and was valued at $576,375,000. 
California and Florida are the major producing States. The production 
of chili peppers in 2004 was 4,753,000 cwt (215,592,453 kg), valued at 
$123,615,000. Chili peppers are defined as all peppers excluding bell 
peppers, and the estimates include both fresh and dry products. New 
Mexico and California are the major producing States.
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    \2\ ``cwt'' is an abbreviation for ``hundredweight,'' the 
standard unit of production for certain agricultural products. One 
hundredweight equals 100 pounds.
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Effects on Small Entities

    The Regulatory Flexibility Act requires agencies to specifically 
consider the economic effects of their rules on small entities. The 
Small Business Administration (SBA) has established size criteria based 
on the North American Industry Classification System (NAICS) to 
determine which economic entities meet the definition of a small firm. 
This rule may affect producers and wholesalers of peppers in the United 
States.
    Pepper producers are classified into two categories: Other 
Vegetable (except Potato) and Melon Farming (NAICS 111219) and Food 
Crops Grown Under Cover (NAICS 11141). The small entity size standard 
for these producers is $750,000 or less in annual receipts. According 
to the 2002 Census of Agriculture, there were 31,550 farms classified 
under NAICS 111219 in 2002. The total market value of the agricultural 
products sold from these farms amounted to $10,159,518,000 with 
$10,093,575,000 accruing to sales of crops, and $65,943,000 to sales of 
livestock, poultry, and their products. Similarly, there were 1,778 
farms classified under NAICS 11141 in 2002. The total value of the 
agricultural products sold from these farms amounted to $1,215,760,000, 
with $1,214,474,000 accruing to sales of crops and $1,286,000 to sales 
of livestock, poultry, and their products.
    However, APHIS does not have information on the distribution of 
these farms by sales value of their products. We also do not have 
information for pepper producers specifically. Nevertheless, the 2002 
Agricultural Census data indicated that the bell peppers harvested for 
sale in 2002 were harvested from 8,484 farms; and that the harvested 
areas were smaller than 5 acres on 90 percent of these farms. Though 
lack of data thus precludes more definitive conclusions regarding the 
potential economic impacts on small entities, the above data indicate 
that the majority of pepper farms that may be affected by this rule 
would likely qualify as small.
    Fruit and vegetable wholesalers are classified under NAICS 424480, 
and those with not more than 100 employees are considered small by SBA 
standards. There were 5,376 fresh fruit and vegetable merchant 
wholesalers in the United States in 2002, which employed a total of 
110,578 employees. APHIS does not have information on the distribution 
of the wholesalers by numbers of employees. We also do not have data on 
the wholesale trade for peppers specifically. However, the above data 
indicate that the majority of fruit and vegetable wholesalers that may 
be affected by this rule would likely qualify as small entities.
    Thus, APHIS expects that the producers and wholesalers in the 
United States that may be affected by the importation of peppers from 
South Korea will predominantly be small entities. Nevertheless, the 
economic effects are not expected to be significant. It has been 
estimated that about 3,000 tons of peppers would be imported annually 
from South Korea. In an economic analysis prepared by APHIS for a 
recent proposed rule,\3\ it was estimated that annual imports of about 
31,040 tons of peppers from the Central American countries of Costa 
Rica, El Salvador, Guatemala, Honduras, and Nicaragua would lead to a 
price decrease of approximately $0.01 to $0.02 per pound at the retail 
level. Since the volume imported from South Korea is expected to be 
significantly smaller, effects on domestic prices that may result from 
the importation of peppers from South Korea should be even lower. Thus, 
the price changes that may result from this level of increase in the 
supply of peppers are expected to be negligible.
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    \3\ See 70 FR 59283-59290, Docket 05-003-1, published October 
12, 2005.
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    On the other hand, importers and consumers in the United States may 
benefit from this rule. Importers will have more import opportunities 
available due to the alternative sources of peppers. Consumers will 
benefit from an increased availability of the product. Nevertheless, 
changes of the magnitude presented here are not likely to have large 
repercussions for either of the categories of entities discussed above.

[[Page 29243]]

Alternatives

    APHIS does not expect there to be any significant economic impact 
of this rule on small entities. There is therefore no basis for setting 
forth alternatives that would minimize significant impacts.
    Two alternatives to this rule that would not meet stated objectives 
would be to either not change current regulations regarding the 
importation of peppers from South Korea or to allow their importation 
without the required risk mitigations.
    The first alternative would maintain current safeguards against the 
entry of exotic pests. However, this option would also mean that both 
countries would forgo economic benefits expected to be afforded by the 
trade. Furthermore, APHIS has concluded that the pest risks associated 
with the importation of peppers from South Korea can be effectively 
mitigated by the phytosanitary requirements; given that conclusion, it 
would be contrary to our obligations under international trade 
agreements to maintain a prohibition on the importation of peppers from 
South Korea.
    Allowing the importation of fresh peppers from South Korea under 
phytosanitary requirements less restrictive than those described in 
this rule could potentially lead to the introduction of pests not 
currently found in the United States. This option could result in 
losses and costs to domestic production and is, thus, not desirable.
    This rule contains information collection or recordkeeping 
requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12988

    This final rule allows peppers to be imported into the United 
States from South Korea. State and local laws and regulations regarding 
peppers imported under this rule will be preempted while the fruit is 
in foreign commerce. Fresh peppers 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.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of peppers 
under the conditions specified in this rule will not have a significant 
impact on the quality of the human environment. Based on the finding of 
no significant impact, the Administrator of the Animal and Plant Health 
Inspection Service has determined that an environmental impact 
statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were 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 and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\4\ Copies of the 
environmental assessment and finding of no significant impact are also 
available for public inspection at USDA, room 1141, South Building, 
14th Street and Independence Avenue, SW., Washington, DC, between 8 
a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons 
wishing to inspect copies are requested to call ahead on (202) 690-2817 
to facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
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    \4\ Go to http://www.regulations.gov, click on the ``Advanced 
Search'' tab and select ``Docket Search.'' In the Docket ID field, 
enter APHIS-2005-0112, click on ``Submit,'' then click on the Docket 
ID link in the search results page. The environmental assessment and 
finding of no significant impact will appear in the resulting list 
of documents.
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Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et. seq.), the information collection or recordkeeping 
requirements included in this rule have been approved by the Office of 
Management and Budget (OMB) under OMB control number 0579-0282.

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 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.


0
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. A new Sec.  319.56-2qq is added to read as follows:


Sec.  319.56-2qq  Administrative instructions; conditions governing the 
entry of peppers from the Republic of Korea.

    Peppers (Capsicum annuum L. var. annuum) from the Republic of Korea 
may be imported into the continental United States only under the 
following conditions:
    (a) The peppers must be grown in the Republic of Korea in insect-
proof greenhouses approved by and registered with the National Plant 
Quarantine Service (NPQS).
    (b) The greenhouses must be equipped with double self-closing 
doors, and any vents or openings in the greenhouses (other than the 
double self-closing doors) must be covered with 0.6 mm screening in 
order to prevent the entry of pests into the greenhouse.
    (c) The greenhouses must be inspected monthly throughout the 
growing season by NPQS to ensure phytosanitary procedures are employed 
to exclude plant pests and diseases, and that the screens are intact.
    (d) The peppers must be packed within 24 hours of harvest in a 
pest-exclusionary packinghouse. During the time the packinghouse is in 
use for exporting peppers to the continental United States, the 
packinghouse can accept peppers only from registered approved 
production sites. The peppers must 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 must 
be packed in insect-proof cartons or containers, or covered with 
insect-proof mesh or plastic tarpaulin, for transit to the continental 
United States. These

[[Page 29244]]

safeguards must remain intact until the arrival of the peppers in the 
United States or the shipment will not be allowed to enter the United 
States.
    (e) Each shipment of peppers must be accompanied by a phytosanitary 
certificate of inspection issued by NPQS bearing the following 
additional declaration: ``These peppers were grown in greenhouses in 
accordance with the conditions in 7 CFR 319.56-2qq and were inspected 
and found free from Agrotis segetum, Helicoverpa armigera, Helicoverpa 
assulta, Mamestra brassicae, Monilinia fructigena, Ostrinia furnacalis, 
Scirtothrips dorsalis, Spodoptera litura, and Thrips palmi.''
    (f) The peppers must be imported in commercial shipments only.

(Approved by the Office of Management and Budget under control 
number 0579-0282)

    Done in Washington, DC, this 17th day of May 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-4718 Filed 5-19-06; 8:45 am]
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