[Federal Register Volume 78, Number 26 (Thursday, February 7, 2013)]
[Rules and Regulations]
[Pages 8957-8960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02775]



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 Rules and Regulations
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  Federal Register / Vol. 78, No. 26 / Thursday, February 7, 2013 / 
Rules and Regulations  

[[Page 8957]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2011-0028]
RIN 0579-AD61


Importation of Fresh Bananas From the Philippines into the 
Continental United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations concerning the importation of 
fruits and vegetables to allow the importation of fresh bananas from 
the Philippines into the continental United States. As a condition of 
entry, the bananas will have to be produced in accordance with a 
systems approach that will include requirements for importation of 
commercial consignments, monitoring of fruit flies to establish low-
prevalence places of production, harvesting only of hard green bananas, 
and inspection for quarantine pests by the national plant protection 
organization of the Philippines. The bananas will also have to be 
accompanied by a phytosanitary certificate with an additional 
declaration stating that they were grown, packed, and inspected and 
found to be free of quarantine pests in accordance with the proposed 
requirements. This action will allow the importation of bananas from 
the Philippines while continuing to protect against the introduction of 
plant pests into the United States.

DATES: Effective Date: February 7, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Meredith Jones, Regulatory 
Coordination Specialist, PPQ, RPM, RCC, APHIS, 4700 River Road Unit 39, 
Riverdale, MD 20737-1231; (301) 851-2289.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56-
1 through 319.56-57, 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 within the United States.
    On April 16, 2012, we published in the Federal Register (77 FR 
22510-22514, Docket No. APHIS-2011-0028) a proposal \1\ to amend the 
regulations to allow the importation of bananas from the Philippines 
into the continental United States. We proposed to allow the 
importation of bananas from the Philippines into the continental United 
States only if they were produced in accordance with a systems 
approach. The proposed systems approach included requirements for:
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0028.
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     Registration, monitoring, and oversight of places of 
production;
     Trapping for the fruit flies Bactrocera musae, B. 
occipitalis, and B. philippinensis to establish low-prevalence places 
of production;
     Covering bananas with pesticide bags during the growing 
season;
     Harvesting only of hard green bananas;
     Requirements for culling, safeguarding, and identifying 
the fruit; and
     Inspection by the NPPO of the Philippines for quarantine 
pests.
    We also proposed to require bananas from the Philippines to be 
accompanied by a phytosanitary certificate with an additional 
declaration stating that the bananas were grown, packed, and inspected 
in accordance with the proposed requirements.
    On May 30, 2012, we published in the Federal Register (77 FR 31829-
31830, Docket No. APHIS-2011-0028) a notice \2\ of availability of an 
environmental assessment (EA) entitled ``Importation of Bananas (Musa 
spp.) from the Philippines into the Continental United States'' (April 
2012). The EA assesses the potential environmental impacts associated 
with allowing the importation of fresh bananas from the Philippines 
into the continental United States.
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    \2\ The notice and EA are also available at the Web address in 
footnote 1.
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    We solicited comments concerning our proposal for 60 days ending 
June 15, 2012, and concerning the EA for 30 days ending June 29, 2012. 
We received four comments by the close of those comment periods. They 
were from a representative of a State government, an organization of 
State plant regulatory officials, and private citizens. One of the 
commenters supported the proposed rule. Another commenter opposed the 
importation of bananas from the Philippines, but did not present any 
specific concerns or identify any particular reasons for opposing the 
importation. The issues raised by the other commenters are discussed 
below.
    One commenter requested that the bananas from the Philippines be 
inspected carefully at the port of entry for all 16 pests of concern 
identified in the pest risk assessment (PRA) that accompanied the 
proposed rule.
    Under paragraph (b) of Sec.  319.56-3, all consignments of fruits 
and vegetables are subject to inspection at the port of entry. 
Inspectors will monitor for all pests listed in the PRA. In addition, 
bananas will be inspected at the port of entry to verify that they are 
at the proper stage of ripeness.
    One commenter opposed the importation of bananas from the 
Philippines, stating that it would increase the risk of accidental or 
incidental introduction of the fruit flies B. musae, B. occipitalis, 
and B. philippinensis into the United States.
    APHIS considers the multiple layers of safeguards sufficient to 
mitigate the risk posed by the fruit flies B. musae, B. occipitalis, 
and B. philippinensis. These mitigations are based on those currently 
used in Central and South America for export of bananas to the United 
States. APHIS interception records going back to 1983 indicate that 
there have been no interceptions of fruit flies in commercially 
produced bananas from Central and South America. Two additional 
mitigations (fruit fly trapping and population control) were added 
specifically for the Philippine bananas program to address fruit fly 
risk. We have determined, for the reasons specified in the risk 
management document that accompanied the

[[Page 8958]]

proposed rule, that these measures will effectively mitigate the risk 
of accidental or incidental introduction of the fruit flies or any pest 
of concern identified in the PRA.
    We are making two editorial changes to Sec.  319.56-58 in order to 
increase the clarity of the requirements. Proposed paragraph (d) stated 
that during the growing period, if a pesticide bag falls off or is 
torn, the fruit in that bag may not be exported to the United States. 
We are adding the words ``that had been'' after ``fruit'' to clarify 
that the fruit that is no longer in the bag cannot be exported from the 
Philippines to the United States.
    Proposed paragraph (e)(2) stated that harvested bananas must be 
placed in field cartons or containers that are marked to show the 
official registration number of the production site. However, paragraph 
(a)(2) refers to ``places of production'' rather than production sites. 
Thus, we are amending paragraph (e)(2) to indicate that cartons or 
containers should be marked with the official registration number of 
the place of production.
    Therefore, for the reasons given in the proposed rule, we are 
adopting the proposed rule as a final rule, with the two editorial 
changes discussed above.

    Note:  In our April 2012 proposed rule, we proposed to add the 
conditions governing the importation of bananas from the Philippines 
as Sec.  319.56-57. In this final rule, those conditions are added 
as Sec.  319.56-58.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    Immediate implementation of this rule is necessary to provide 
relief to those persons who are adversely affected by restrictions we 
no longer find warranted. Making this rule effective immediately will 
allow interested producers and others in the marketing chain to benefit 
from the availability of bananas from an additional source. Therefore, 
the Administrator of the Animal and Plant Health Inspection Service has 
determined that this rule should be effective upon publication in the 
Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
on the Regulations.gov Web site (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    The analysis examines impacts for U.S. small entities if fresh 
bananas are imported from the Philippines into the continental United 
States. Commercial production of bananas in the United States takes 
place in Hawaii, where most if not all of the banana farms are small 
entities. These producers will be little affected by the final rule 
given the large quantity of bananas already imported by the United 
States and the relatively small quantity expected to be imported from 
the Philippines. The United States is clearly a minor producer but a 
major importer of bananas. Compared to the volume of current imports, 
the quantity of bananas expected to be imported from the Philippines is 
negligible. In addition, bananas from the Philippines will not be 
allowed entry into Hawaii.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12988

    This final rule allows bananas to be imported into the United 
States from the Philippines. State and local laws and regulations 
regarding bananas imported under this rule will be preempted while the 
fruit is in foreign commerce. Fresh fruits 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 EA 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 bananas from the Philippines into 
the continental United States, 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 EA 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 EA and finding of no significant impact may be viewed on the 
Regulations.gov Web site.\3\ 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) 799-7039 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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    \3\ The EA and finding of no significant impact are available at 
the Web address in footnote 1.
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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 final rule, which were 
filed under 0579-0394, have been submitted for approval to the Office 
of Management and Budget (OMB). When OMB notifies us of its decision, 
if approval is denied, we will publish a document in the Federal 
Register providing notice of what action we plan to take.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

[[Page 8959]]

List of Subjects in 7 CFR Part 319

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

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

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

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


0
2. A new Sec.  319.56-58 is added to read as follows:


Sec.  319.56-58  Bananas from the Philippines.

    Bananas (Musa spp., which include M. acuminate cultivars and M. 
acuminate x M. balbisiana hybrids) may be imported into the continental 
United States from the Philippines only under the conditions described 
in this section. These conditions are designed to prevent the 
introduction of the following quarantine pests: Bactrocera musae 
(Tryon), Bactrocera occipitalis (Bezzi), and Bactrocera philippinensis 
(Drew and Hancock), fruit flies; Ceroplastes rubens (Maskell), the red 
wax scale; Coccus viridis (Green), the green scale; Sybra alternans 
(Wiedemann), a longhorned beetle; Dymicoccus neobrevipes (Beardsley), 
the gray pineapple mealybug; Geococcus coffeae (Green), the coffee root 
mealybug; Maconellicoccus hirsutus (Green), the hibiscus mealybug; 
Planococcus lilacinus (Cockerell), the coffee mealybug; Planococcus 
minor (Maskell), the pacific mealybug; Pseudococcus cryptus (Hempel), 
the cryptic mealybug; Rastrococcus invadens (Williams), the mango 
mealybug; and Rastrococcus spinosus (Robinson), the Philippine mango 
mealybug.
    (a) General requirements. (1) The national plant protection 
organization (NPPO) of the Philippines must provide an operational 
workplan to APHIS that details the activities that the NPPO of the 
Philippines will, subject to APHIS' approval of the workplan, carry out 
to meet the requirements of this section.
    (2) Bananas must be grown at places of production that are 
registered with the NPPO of the Philippines and that meet the 
requirements of this section. Registration must be renewed annually.
    (3) Bananas must be packed for export to the United States in 
packinghouses that meet the requirements of this section.
    (4) Bananas from the Philippines may be imported in commercial 
consignments only.
    (b) Monitoring and oversight. (1) The NPPO of the Philippines must 
visit and inspect registered places of production monthly, starting at 
least 3 months before harvest begins and continuing through the end of 
the shipping season, to verify that the growers are complying with the 
requirements of this section and follow pest control guidelines, when 
necessary, to reduce quarantine pest populations. When trapping is 
required under paragraph (c) of this section, the NPPO of the 
Philippines must also verify that the growers are complying with the 
requirements in that paragraph and must certify that each place of 
production has an effective fruit fly trapping program. Any personnel 
conducting trapping under paragraphs (c) of this section must be 
trained and supervised by the NPPO of the Philippines. APHIS may 
monitor the places of production as necessary to ensure compliance.
    (2) If the NPPO of the Philippines finds that a place of production 
or packinghouse is not complying with the requirements of this section, 
no fruit from the place of production or packinghouse will be eligible 
for export to the United States until APHIS and the NPPO of the 
Philippines conduct an investigation and appropriate remedial actions 
have been implemented.
    (3) The NPPO of the Philippines must retain all forms and documents 
related to export program activities in places of production and 
packinghouses for at least 1 year and, as requested, provide them to 
APHIS for review.
    (c) Fruit fly trapping to establish places of production with low 
pest prevalence. Beginning at least 3 months before harvest begins and 
continuing through the end of the harvest, trapping must be conducted 
in registered places of production with at least 1 trap per 0.2 square 
kilometers to demonstrate that the places of production have a low 
prevalence of Bactrocera spp. fruit flies. APHIS-approved traps baited 
with APHIS-approved plugs must be used and serviced at least once every 
2 weeks. During the trapping, when traps are serviced, if fruit flies 
are trapped at a particular place of production at cumulative levels 
above 2 flies per trap per day, pesticide bait treatments must be 
applied in the affected place of production in order for the place of 
production to remain eligible to export bananas to the United States. 
The NPPO of the Philippines must keep records of fruit fly detections 
for each trap, update the records each time the traps are checked, and 
make the records available to APHIS inspectors upon request. If no 
Bactrocera spp. larvae have been found in the inspections required in 
paragraph (h) of this section by February 9, 2015, the activities 
described in this paragraph are no longer required.
    (d) Bagging requirements. Plastic bags impregnated with pesticides 
must cover the bananas. During the growing period, if a pesticide bag 
falls off or is torn, the fruit that had been in that bag may not be 
exported to the United States.
    (e) Harvesting requirements. (1) Bananas must be harvested at a 
hard green stage and inspected at the port of entry to determine that:
    (i) Bananas shipped by air are still green upon arrival in the 
United States;
    (ii) Bananas shipped by sea are either green upon arrival in the 
United States or yellow but firm.
    (2) Harvested bananas must be placed in field cartons or containers 
that are marked to show the official registration number of the place 
of production. The identification of the place of production must be 
maintained from the time when the fruit leaves the place of production 
until the fruit is released for entry into the United States.
    (f) Post-harvest processing. After harvest, all damaged or diseased 
fruit must be culled at the packinghouse. Fruit must be washed with a 
high pressure water spray, and washed with soap and water.
    (g) Packinghouse requirements. (1) Packinghouses must prevent the 
entry of pests with a double-door entry system designed to exclude 
quarantine pests of concern.
    (2) Bananas for export must be packed into new, clean boxes, crates 
or other packing materials. Bananas intended for export to the United 
States must be labeled with the name and location for the packinghouse, 
and segregated from bananas intended for other markets.
    (3) The shipping documents accompanying the consignment of bananas 
from the Philippines that are exported to the United States must 
include the official registration number of the place of production at 
which the bananas were grown and must identify the packinghouse in 
which the fruit was processed and packed. This identification must be 
maintained until the fruit is released for entry into the United 
States.
    (4) The packinghouse operations for export of bananas must be 
monitored by the NPPO of the Philippines.
    (h) NPPO of the Philippines inspection. (1) Following any post-
harvest processing, inspectors from the NPPO of the Philippines must 
certify that bananas were harvested at the hard green stage.

[[Page 8960]]

    (2) Inspectors from the NPPO of the Philippines must inspect a 
biometric sample of the fruit from each place of production at a rate 
to be determined by APHIS. The inspectors must visually inspect for 
quarantine pests listed in the introductory text of this section and 
must cut fruit to inspect for quarantine pests that are internal 
feeders. If Bactrocera spp. fruit flies are found upon inspection, the 
export program will be suspended until an investigation has been 
conducted by APHIS and the NPPO of the Philippines and appropriate 
mitigations have been implemented. If other quarantine pests are 
detected in this inspection, the consignment will be destroyed and the 
registered place of production will be rejected from the export 
program.
    (i) Phytosanitary certificate. Each consignment of fruit must be 
accompanied by a phytosanitary certificate issued by the NPPO of the 
Philippines that contains an additional declaration stating that the 
bananas in the consignment were grown, packed, and inspected in 
accordance with the systems approach in 7 CFR 319.56-58.

(Approved by the Office of Management and Budget under control 
number 0579-0394)

    Done in Washington, DC, this 4th day of February 2013.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2013-02775 Filed 2-6-13; 8:45 am]
BILLING CODE 3410-34-P