[Federal Register Volume 80, Number 79 (Friday, April 24, 2015)]
[Proposed Rules]
[Pages 22930-22934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09581]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0086]
RIN 0579-AE07


Importation of Fresh Peppers From Ecuador Into the United States

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the fruits and vegetables 
regulations to allow the importation of fresh peppers into the United 
States from Ecuador. As a condition of entry, the fruit would have to 
be produced in accordance with a systems approach that would include 
requirements for fruit fly trapping, pre-harvest inspections, 
production sites, and packinghouse procedures designed to exclude 
quarantine pests. The fruit would also be required to be imported in 
commercial consignments and accompanied by a phytosanitary certificate 
issued by the national plant protection organization of Ecuador stating 
that the consignment was produced and prepared for export in accordance 
with the requirements in the systems approach. This action would allow 
for the importation of fresh peppers from Ecuador while continuing to 
provide protection against the introduction of plant pests into the 
United States.

DATES: We will consider all comments that we receive on or before June 
23, 2015.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0086.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2014-0086, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2014-
0086 or in our reading room, which 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) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Ms. Claudia Ferguson, Senior 
Regulatory Policy Specialist, Regulatory Coordination and Compliance, 
Regulations, Permits and Manuals, PPQ, APHIS, 4700 River Road Unit 133, 
Riverdale, MD 20737-1231; (301) 851-2352; 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 
319.56-1 through 319.56-71, referred to below as the regulations) 
prohibit or restrict the importation of fruits and vegetables into

[[Page 22931]]

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. The regulations currently 
do not authorize the importation of fresh peppers from Ecuador.
    The national plant protection organization (NPPO) of Ecuador has 
requested that the Animal and Plant Health Inspection Service (APHIS) 
amend the regulations in order to allow the common bell pepper 
(Capsicum annuum L.), locoto pepper (Capsicum baccatum L.), habanero 
pepper (Capsicum chinense Jacq.), tabasco pepper (Capsicum frutescens 
L.), and manzano pepper (Capsicum pubescens Ruiz & Pav.) to be imported 
into the United States. (Hereafter we refer to these species as 
``peppers.'')
    As part of our evaluation of Ecuador's request, we prepared a pest 
risk assessment (PRA) and a risk management document (RMD). Copies of 
the PRA and the RMD may be obtained from the person listed under FOR 
FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site 
(see ADDRESSES above for instructions for accessing Regulations.gov).
    The PRA, titled ``Importation of Fresh Pepper Fruit--Capsicum 
annuum L., Capsicum baccatum L., Capsicum chinense Jacq., Capsicum 
frutescens L., and Capsicum pubescens Ruiz & Pav.--from Ecuador into 
the United States (January 2013),'' evaluates the risks associated with 
the importation of fresh peppers from Ecuador into the United States. 
The RMD relies upon the findings of the PRA to determine the 
phytosanitary measures necessary to ensure the safe importation into 
the United States of fresh peppers from Ecuador.
    The PRA identifies eight quarantine pests present in Ecuador that 
could be introduced into the United States through the importation of 
fresh peppers:
     Anastrepha fraterculus (Wiedemann), South American fruit 
fly.
     Ceratitis capitata (Wiedemann), Mediterranean fruit fly.
     Neoleucinodes elegantalis (Guen[eacute]e), a fruit-boring 
moth.
     Puccinia pampeana Speg., a pathogenic fungus that causes 
pepper and green pepper rust.
     Spodoptera litura (Fabricius), a leaf-eating moth.
     Thrips palmi Karny, an arthropod.
     Tuta absoluta (Meyrick) Povolny, South American tomato 
moth.
     Andean potato mottle virus.
    A quarantine pest is defined in Sec.  319.56-2 of the regulations 
as a pest of potential economic importance to the area endangered 
thereby and not yet present there, or present but not widely 
distributed and being officially controlled. Plant pest risk potentials 
associated with the importation of fresh peppers from Ecuador into the 
United States were determined by estimating the consequences and 
likelihood of introduction of each quarantine pest into the United 
States and ranking the risk potential as high, medium, or low. The PRA 
rated six of the pests as having a high pest risk potential for 
following the pathway of peppers from Ecuador into the United States: 
The insects Anastrepha fraterculus, Ceratitis capitata, Spodoptera 
litura, Thrips palmi, and Tuta absoluta and the fungus Puccinia 
pampeana. The PRA rated the insect Neoleucinodes elegantalis and the 
Andean potato mottle virus with a medium pest risk potential.
    APHIS has determined that measures beyond standard port of arrival 
inspection are required to mitigate the risks posed by these plant 
pests. Therefore, we are proposing to allow the importation of fresh 
peppers with stems from Ecuador into the United States produced under a 
systems approach. The RMD prepared for fresh peppers from Ecuador 
identifies a systems approach of specific mitigation measures against 
the quarantine pests identified in the PRA and concludes that those 
measures, along with the general requirements for the importation of 
fruits and vegetables in the regulations, will be sufficient to prevent 
the introduction of those pests into the United States. Therefore, we 
are proposing to add the systems approach to the regulations in a new 
Sec.  319.56-73. The proposed measures are described below.

General Requirements

    Paragraph (a) of proposed Sec.  319.56-73 would require the NPPO of 
Ecuador to provide an operational workplan to APHIS that details the 
activities that the NPPO would, subject to APHIS' approval of the 
workplan, carry out to meet the requirements of proposed Sec.  319.56-
73. An operational workplan is an agreement developed between APHIS' 
Plant Protection and Quarantine program, officials of the NPPO of a 
foreign government, and, when necessary, foreign commercial entities, 
that specifies in detail the phytosanitary measures that will be 
carried out to comply with our regulations governing the importation of 
a specific commodity. Operational workplans apply only to the signatory 
parties and establish detailed procedures and guidance for the day-to-
day operations of specific import/export programs. Operational 
workplans also establish how specific phytosanitary issues are dealt 
with in the exporting country and make clear who is responsible for 
dealing with those issues. The implementation of a systems approach 
typically requires an operational workplan to be developed.
    Paragraph (b) of proposed Sec.  319.56-73 would require fresh 
peppers from Ecuador to be imported in 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.

Production Site Requirements

    Paragraph (c)(1) of proposed Sec.  319.56-73 would require that the 
peppers be grown in a pest-free, pest-exclusionary greenhouse or 
similar structure approved by and registered with the NPPO of Ecuador. 
Pest-free production sites have been used successfully to prevent 
infestation by C. capitata and other quarantine pests for peppers of 
the species Capsicum annuum, Capsicum baccatum, Capsicum chinense, and 
Capsicum frutescens in Costa Rica, El Salvador, Guatemala, Honduras, 
and Nicaragua since 2005. No pests of quarantine significance have been 
intercepted by APHIS on fresh peppers grown in such structures and 
imported into the United States from these regions. The pest-
exclusionary structures would have to be equipped with double self-
closing doors to prevent inadvertent introduction of pests. In 
addition, any windows, vents, or openings in the pest-exclusionary 
structures (other than the double self-closing doors) would have to be 
covered with 1.6 mm screening (or less) in order to prevent the entry 
of pests. The 1.6 mm screening size is adequate to exclude A. 
fraterculus, C. capitata, N. elegantalis, S. litura, and T. absoluta, 
as these pests are relatively large.
    Paragraph (c)(2) of proposed Sec.  319.56-73 would require that all 
production sites participating in the fresh pepper export program be 
registered with the NPPO of Ecuador. Such registration would facilitate 
traceback of a consignment of peppers to the production site in the 
event that quarantine pests were discovered in the consignment at the 
port of first arrival into the United States. APHIS would reserve the 
right to conduct audits and

[[Page 22932]]

inspect the production sites as necessary.
    Paragraph (c)(3) of proposed Sec.  319.56-73 would require the 
production sites to be inspected prior to harvest by the NPPO of 
Ecuador or its approved designee \1\ in accordance with the operational 
workplan. If, during these inspections, T. palmi, the Lepidoptera N. 
elegantalis, S. litura, T. absoluta, P. pampeana, the Andean potato 
mottle virus, or other quarantine pests are found to be generally 
infesting or infecting the production site, the NPPO of Ecuador would 
immediately prohibit that production site from exporting peppers to the 
United States and notify APHIS of the action. The prohibition would 
remain in effect until the NPPO of Ecuador and APHIS agree that the 
pest risk has been mitigated.
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    \1\ An approved designee is an entity with which the NPPO 
creates a formal agreement that allows that entity to certify that 
the appropriate procedures have been followed. The approved designee 
can be a contracted entity, a coalition of growers, or the growers 
themselves.
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    Paragraph (c)(4) of proposed Sec.  319.56-73 would require trapping 
for the fruit flies A. fraterculus and C. capitata at each production 
site in accordance with the operational workplan.
    Paragraph (c)(5) would state that, if a single A. fraterculus or C. 
capitata is detected inside a registered production site or in a 
consignment, the NPPO of Ecuador would immediately prohibit that 
production site from exporting peppers to the United States and notify 
APHIS of the action. The prohibition would remain in effect until the 
NPPO of Ecuador and APHIS agree that the risk has been mitigated.
    To ensure that the trapping is being properly conducted, paragraph 
(c)(6) would state that the NPPO of Ecuador would have to maintain 
records of trap placement, trap checks, and any quarantine pest 
captures in accordance with the operational workplan. Trapping records 
would have to be maintained for APHIS' review for at least 1 year.
    Paragraph (c)(7) would state that the NPPO of Ecuador would have to 
maintain a quality control program, approved by APHIS, to monitor or 
audit the trapping program in accordance with the operational workplan.

Packinghouse Requirements

    We are proposing several requirements for packinghouse activities, 
which would be contained in paragraph (d) of proposed Sec.  319.56-73.
    Paragraph (d)(1) would require that fresh peppers be packed in a 
packinghouse registered with the NPPO of Ecuador. Such registration 
would facilitate traceback of a consignment of peppers to the 
packinghouse in which it was packed in the event that quarantine pests 
were discovered in the consignment at the port of first arrival into 
the United States.
    Paragraph (d)(2) 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 to the packinghouse and while awaiting 
packing. The peppers would be required 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 
consignment would be denied entry.
    Paragraph (d)(3) of proposed Sec.  319.56-73 would require that 
during the time that the packinghouse is in use for exporting fresh 
peppers to the United States, the packinghouse would only be allowed to 
accept peppers from registered production sites. This requirement would 
prevent such peppers intended for export to the United States from 
being exposed to or otherwise mixed with peppers that are not produced 
according to the requirements of the systems approach.

Phytosanitary Certificate

    To certify that fresh peppers from Ecuador have been grown and 
packed in accordance with the requirements of proposed Sec.  319.56-73, 
proposed paragraph (e) would require each consignment of peppers to be 
accompanied by a phytosanitary certificate issued by the NPPO of 
Ecuador bearing the additional declaration that the consignment was 
produced and prepared for export in accordance with the requirements of 
Sec.  319.56-73. 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 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).
    The proposed rule would amend the regulations to allow the 
importation of fresh peppers from Ecuador into the United States when a 
systems approach to pest risk mitigation is used to prevent the 
introduction of quarantine pests. The systems approach would integrate 
prescribed mitigation measures that cumulatively achieve the 
appropriate level of phytosanitary protection.
    The most recent production data available show that fresh pepper 
yields in Ecuador have expanded from approximately 12,522 pounds per 
hectare (pounds/ha) in 1996 to approximately 66,361 pounds/ha in 2006. 
The total quantity of fresh peppers that were exported from Ecuador in 
2006 and 2007 was 96.3 metric tons (MT) and 206.5 MT, respectively. Sea 
shipping containers that are 40 feet in length hold approximately 20 
U.S MT. Considering the total volume exported from Ecuador during these 
years, APHIS estimates imports of no more than 10 containers (200 MT) 
of fresh peppers from Ecuador into the United States annually. This 
quantity is equivalent to less than 0.02 percent of annual U.S. fresh 
pepper production. Similarly, the estimated quantity of fresh pepper 
imports from Ecuador (200 MT annually) is minimal compared to the total 
quantity of fresh peppers imported by the United States in recent years 
(800,000 MT annually).
    In the United States, the average value of bell pepper production 
per farm in 2012 was approximately $52,300, and the average value of 
chili pepper production per farm was approximately $20,700. Both levels 
are well below the small-entity standard of $750,000. Establishments 
classified within NAICS 111219, including pepper farms, are considered 
small by the Small Business Administration (SBA) if annual sales are 
not more than $750,000. Accordingly, pepper growers are predominantly 
small entities according to the SBA standard.
    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 fresh peppers to be imported into 
the United States from Ecuador. If this proposed rule is adopted, State 
and local laws and regulations regarding fresh peppers imported under 
this rule would be preempted while the fruit is in foreign commerce. 
Fresh vegetables are

[[Page 22933]]

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

    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. APHIS-
2014-0086. Please send a copy of your comments to: (1) APHIS, using one 
of the methods described under ADDRESSES at the beginning of this 
document, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th 
Street and Independence Avenue SW., Washington, DC 20250.
    APHIS is proposing to amend the fruits and vegetables regulations 
to allow the importation of fresh peppers into the United States from 
Ecuador. As a condition of entry, the fruit would have to be produced 
in accordance with a systems approach that would include requirements 
for fruit fly trapping, inspections, production sites, a quality 
control program, and packinghouse procedures designed to exclude 
quarantine pests. The fruit would also be required to be imported in 
commercial consignments and be accompanied by a phytosanitary 
certificate issued by the NPPO of Ecuador stating that the consignment 
was produced and prepared for export in accordance with the 
requirements of Sec.  319.56-73.
    This action would allow for the importation of fresh peppers from 
Ecuador while continuing to provide protection against the introduction 
of plant pests into the United States.
    Allowing the importation of fresh peppers into the United States 
from Ecuador will require an operational workplan, registered 
production sites, trapping records, quality control program, 
packinghouse registrations, box labeling, and phytosanitary 
certificates.
    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 .007 hours per response.
    Respondents: NPPO, producers, exporters.
    Estimated number of respondents: 802.
    Estimated number of responses per respondent: 251.45.
    Estimated annual number of responses: 201,669.
    Estimated total annual burden on respondents: 1,486 hours. (Due to 
rounding, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the average reporting 
burden per response.)
    Copies of this information collection can be obtained from Ms. 
Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 
851-2727.

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 proposed rule, please contact Ms. Kimberly 
Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

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

0
1. The authority citation for part 319 continues 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.

0
2. Section 319.56-73 is added to read as follows:


Sec.  319.56-73  Peppers from Ecuador.

    Fresh peppers (Capsicum annum L., Capsicum baccatum L., Capsicum 
chinense Jacq., Capsicum frutescens L., and Capsicum pubescens Ruiz & 
Pav.) from Ecuador may be imported into the United States only under 
the conditions described in this section. These conditions are designed 
to prevent the introduction of the following quarantine pests: Andean 
potato mottle virus; Anastrepha fraterculus (Wiedemann), South American 
fruit fly; Ceratitis capitata (Wiedemann), Mediterranean fruit fly; 
Neoleucinodes elegantalis (Guen[eacute]e), a fruit boring moth; 
Puccinia pampeana Speg., a pathogenic fungus that causes pepper and 
green pepper rust Spodoptera litura (Fabricius), a leaf-eating moth; 
Thrips palmi Karny, an arthropod; and Tuta absoluta (Meyrick) Povolny, 
South American tomato moth.
    (a) General requirements. The national plant protection 
organization (NPPO) of Ecuador must provide an operational workplan to 
APHIS that details activities that the NPPO of Ecuador will, subject to 
APHIS' approval of the workplan, carry out to meet the requirements of 
this section. The operational workplan must include and describe the 
specific requirements as set forth in this section.
    (b) Commercial consignments. Peppers from Ecuador may be imported 
in commercial consignments only.
    (c) Production site requirements. (1) Pepper production sites must 
consist of pest-exclusionary structures, which must have double self-
closing doors and have all other windows, openings, and vents covered 
with 1.6 mm (or less) screening.
    (2) All production sites that participate in the pepper export 
program must be registered with the NPPO of Ecuador.
    (3) The production sites must be inspected prior to each harvest by 
the NPPO of Ecuador or its approved designee in accordance with the 
operational workplan. If any quarantine pests are found to be generally 
infesting or infecting the production site, the

[[Page 22934]]

NPPO of Ecuador will immediately prohibit that production site from 
exporting peppers to the United States and notify APHIS of this action. 
The prohibition will remain in effect until the NPPO of Ecuador and 
APHIS agree that the pest risk has been mitigated. If a designee 
conducts the program, the designation must be detailed in the 
operational workplan. The approved designee can be a contracted entity, 
a coalition of growers, or the growers themselves.
    (4) The registered production sites must conduct trapping for the 
fruit flies A. fraterculus and C. capitata at each production site in 
accordance with the operational workplan.
    (5) If a single A. fraterculus or C. capitata is detected inside a 
registered production site or in a consignment, the NPPO of Ecuador 
must immediately prohibit that production site from exporting peppers 
to the United States and notify APHIS of the action. The prohibition 
will remain in effect until the NPPO of Ecuador and APHIS agree that 
the risk has been mitigated.
    (6) The NPPO of Ecuador must maintain records of trap placement, 
checking of traps, and any quarantine pest captures in accordance with 
the operational workplan. Trapping records must be maintained for APHIS 
review for at least 1 year.
    (7) The NPPO of Ecuador must maintain a quality control program, 
approved by APHIS, to monitor or audit the trapping program in 
accordance with the operational workplan.
    (d) Packinghouse procedures. (1) All packinghouses that participate 
in the export program must be registered with the NPPO of Ecuador.
    (2) 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. The peppers must be packed in 
insect-proof cartons or containers, or covered with insect-proof mesh 
or plastic tarpaulin, for transit into 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.
    (3) During the time the packinghouse is in use for exporting 
peppers to the United States, the packinghouse may only accept peppers 
from registered approved production sites.
    (e) Phytosanitary certificate. Each consignment of peppers must be 
accompanied by a phytosanitary certificate issued by the NPPO of 
Ecuador bearing the additional declaration that the consignment was 
produced and prepared for export in accordance with the requirements of 
Sec.  319.56-73. The shipping box must be labeled with the identity of 
the production site.

    Done in Washington, DC, this 20th day of April 2015.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2015-09581 Filed 4-23-15; 8:45 am]
 BILLING CODE 3410-34-P