[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Proposed Rules]
[Pages 30303-30305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13002]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / 
Proposed Rules  

[[Page 30303]]



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: Proposed rule.

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SUMMARY: We are proposing to allow, under certain conditions, the 
importation of commercial shipments of peppers from Panama 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 Panama into the 
United States, while continuing to provide protection against the 
introduction of quarantine pests.

DATES: We will consider all comments that we receive on or before 
August 2, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2010-0002) to submit or view comments 
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2010-0002, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2010-0002.
    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: 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 
through 319.56-50, 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.
    In 2004, in response to a request from the Governments of Costa 
Rica, El Salvador, Guatemala, Honduras, and Nicaragua, the Animal and 
Plant Health Inspection Service (APHIS) prepared a pest risk assessment 
(PRA) to examine plant pest risks associated with the importation of 
fresh peppers into the United States from these countries. Recently, 
the national plant protection organization (NPPO) of Panama has 
requested that APHIS amend the regulations to allow peppers from Panama 
to be imported into the United States. As part of our evaluation of 
Panama's request, we have updated the 2004 PRA to include Panama as an 
exporting country and have prepared a risk management document. Copies 
of the PRA and risk management document may be obtained from the person 
listed under FOR FURTHER INFORMATION CONTACT or viewed on the 
Regulations.gov Web site or in our reading room (see ADDRESSES above 
for a link to Regulations.gov and information on the location and hours 
of the reading room).
    The updated PRA, titled ``Importation of Fresh Pepper-Capsicum 
annuum L., Capsicum baccatum L., Capsicum chinense Jacq., Capsicum 
frutescens L., and Capsicum pubescens Ruiz & Pav.-Fruit with Stems from 
Central America into the United States'' (April 2009), evaluates the 
risks associated with the importation of peppers into the continental 
United States. The PRA identified 12 pests of quarantine significance 
present in Central America, including Panama, that could be introduced 
into the United States via peppers, including 8 insect pests, 1 
bacterium, 1 fungus, and 2 viruses.

Insect pests:

    Mexican fruit fly (Mexfly, Anastrapha ludens).
    Mediterranean fruit fly (Medfly, Ceratitis capitata).
    The weevil Faustinus ovatipennis.
    Pea leafminer (Liriomyza huidobrensis).
    Tomato fruit borer (Neoleucinodes elegantalis).
    Lantana mealybug (Phenacoccus parvus).
    Passionvine mealybug (Planococcus minor).
    Melon thrips (Thrips palmi).

Bacterium:

    Bacterial wilt (Ralstonia solanacearum race 3 biovar 2).

Fungus:

    The rust fungus Puccinia pampeana.

Viruses:

    Andean potato mottle virus.
    Tomato severe leaf curl virus.

Pest List Changes

    The updates to the PRA did not result in significant changes to the 
pest list established in the 2004 PRA, but there are two additional 
pests that have been added to the list of pests for which inspection is 
required: Bacterial wilt and tomato severe leaf curl virus. We added 
those pests to the list based on scientific analysis and interception 
records as detailed in the PRA. As discussed below, symptoms of these 
two pests are macroscopic and easily detectable via the required field 
inspections.
    We have also removed two pests from the list of pests for which 
peppers from Central America must be inspected: The banana moth 
(Opogona sacchari) and

[[Page 30304]]

tomato yellow mosaic virus. In the 2004 PRA, peppers were determined to 
be a minor host for the banana moth. Since that time, there have been 
no interceptions of banana moth associated with shipments of peppers 
from Central America. Further, banana moth larvae are scavengers of 
dried and/or harvested vegetable material, and feed only occasionally 
on living material. The pest primarily attacks the plant stems and 
decaying pseudostems; however, since pepper stems are not woody or 
fleshy, and damaged fruits and tissues are likely to be culled during 
post-harvest processing, we find it unlikely that the pest will follow 
the importation pathway.
    Our basis for including tomato yellow mosaic virus in the 2004 PRA 
was the result of its identification as a potential pest of concern in 
the literature. However, upon further review, tomato yellow mosaic 
virus is not widely reported to occur in Central America. In addition, 
we found no evidence that this virus affects Capsicum spp. For these 
reasons, we are proposing to remove the banana moth and tomato yellow 
mosaic virus from the list of pests for which peppers from Central 
America must be inspected.

Systems Approach

    To mitigate the risks presented by Mexfly and Medfly, we propose to 
utilize the systems approach found in Sec.  319.56-40. The regulations 
in Sec.  319.56-40 contain specific phytosanitary measures that vary 
depending upon area freedom from Mexfly and Medfly. These measures 
include:
     In Medfly-free areas: Pre-harvest inspection for the pests 
of concern conducted by the NPPO of Panama and a phytosanitary 
certificate issued by the NPPO certifying the pest-free status of the 
growing area and the shipment.
     In areas where Medfly or Mexfly exists: Peppers must be 
grown in registered production sites with pest-exclusionary 
greenhouses, trapping for Medfly or Mexfly must take place as 
specified, peppers must be packed in pest-exclusionary packinghouses, 
and export certification with issuance of an accompanying phytosanitary 
certificate must be completed.
    The remaining pests of concern 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 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 
in Sec.  319.56-40 is too small to allow the entry of adult tomato 
fruit borers.
     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.
     Bacterial wilt causes wilting of plant leaves without 
yellowing. In addition, the roots and lower part of the stem undergo 
visible browning.
     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 is easily observable on 
mature plants in the field. Symptoms include mottling of the plant and 
other plant deformities. In many cases the fruit will not develop and 
the plants themselves may be dwarfed.
     The tomato severe leaf curl virus involves an initial 
upward cupping of the leaves, followed by an inward roll. In severe 
cases, the leaves roll up until the leaflets overlap. Symptomatic 
leaves become thickened and leathery.

Commercial Consignments

    The commodity imports would be restricted to commercial 
consignments only. Produce grown commercially is less likely to be 
infested with plant pests than noncommercial consignments. 
Noncommercial consignments are more prone to infestations because the 
commodity is often ripe to overripe, could be of a variety with unknown 
susceptibility to pests, and is often grown with little or no pest 
control. Commercial consignments, as defined in Sec.  319.56-1, are 
lots of fruits or vegetables that an inspector identifies as having 
been imported for sale and distribution. Identification of a particular 
consignment as commercial is based on a variety of indicators, 
including, but not limited to, the quantity of produce, the type of 
packaging, identification of a grower or packinghouse on the packaging, 
and documents consigning the fruits or vegetables to a wholesaler or 
retailer. Commercially produced fruit in Panama are already subjected 
to standard cultural and post-harvest practices that reduce the risk 
associated with plant pests. While not specifically required by this 
proposal, standard cultural practices other than the twice yearly 
application of broad spectrum fungicides (e.g., the regular use of 
sanitation measures, irrigation, fertilization, and pest control) help 
to further ensure that the pests of concern do not follow the pathway. 
All export orchards are registered production sites with traceback 
capability. Harvested fruit is moved to the packinghouses in a manner 
that would preclude infestation by pests. Culling of blemished and 
damaged fruit occurs in the field and during the post-harvest 
commercial processing of the fruit.
    The regulations in Sec.  319.56-6 provide that all imported fruits 
and vegetables shall be inspected, and shall be subject to such 
disinfection at the port of first arrival as may be required by an 
inspector. The pre-export inspection conducted by APHIS personnel as 
part of preclearance activities in the country of export typically 
serves to satisfy the inspection requirement. Section 319.56-6 also 
provides that any shipment of fruits and vegetables may be refused 
entry if the shipment is so infested with plant pests that an inspector 
determines that it cannot be cleaned or treated. We believe that the 
proposed conditions described above, as well as all other applicable 
requirements in Sec.  319.56-6, would be adequate to prevent the 
introduction of plant pests into the United States with peppers 
imported from Panama.
    We therefore propose to add Panama to the list of countries in 
Sec.  319.56-40, from which importations of peppers are allowed.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the Office of Management and Budget.
    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 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).

[[Page 30305]]

    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. 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 is 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 would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This proposed rule would allow peppers to be imported into the 
United States from Panama. 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.

Paperwork Reduction Act

    This proposed 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.

0
Accordingly, we propose to amend 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 of 
the section 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 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, 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.
* * * * *
    (b) * * *
    (3) * * *
    (v) The greenhouse must be inspected prior to harvest for 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 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.
* * * * *
    (c) * * *
    (3) * * *
    (v) The greenhouse must be inspected prior to harvest for 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 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.
* * * * *
    Done in Washington, DC, this 24\th\ day of May 2010.

Kevin Shea
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2010-13002 Filed 5-28-10: 12:33 pm]
BILLING CODE 3410-34-S