[Federal Register Volume 80, Number 177 (Monday, September 14, 2015)]
[Rules and Regulations]
[Pages 55016-55019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23037]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2014-0028]
RIN 0579-AD97


Importation of Fresh Peppers From Peru into the Continental 
United States and the Territories

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 of fresh peppers into the continental United States and 
the Territories from Peru. As a condition of entry, the fruit will have 
to be produced in accordance with a systems approach that includes 
requirements for fruit fly trapping, pre-harvest inspections, 
production sites, and packinghouse procedures designed to exclude 
quarantine pests. The fruit will also be required to be imported in 
commercial consignments and accompanied by a phytosanitary certificate 
issued by the national plant protection organization of Peru with an 
additional declaration stating that the consignment was produced in 
accordance with the requirements of the systems approach. This action 
allows for the importation of untreated fresh peppers from Peru while 
continuing to provide protection against the introduction of plant 
pests into the continental United States and the Territories.

DATES: Effective October 14, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Senior Regulatory 
Policy Specialist, Plant Health Programs, PPQ, APHIS, 4700 River Road 
Unit 133, Riverdale, MD 20737; (301) 851-2240.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 319.56-
1 through 319.56-72, 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 April 24, 2015, we published in the Federal Register (80 FR 
22934-22938, Docket No. APHIS-2014-0028) a proposal \1\ to amend the 
regulations in order to allow the common chili pepper (Capsicum annuum 
L.), aji pepper (Capsicum baccatum L.), habanero chili (Capsicum 
chinense Jacq.), Thai pepper (Capsicum frutescens L.), and rocoto 
(Capsicum pubescens Ruiz & Pav.) (hereafter we refer to these species 
as ``fresh peppers'') to be imported into the continental United States 
and the Territories (the Commonwealth of Northern Mariana Islands, the 
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United 
States, and any other territory or possession of the United States).
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    \1\ To view the proposed rule, supporting documents, and the 
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-V2014-0028.
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    We prepared a pest risk assessment (PRA) and a risk management 
document (RMD) to accompany the proposed rule. Based on the conclusions 
of the PRA and the RMD, we proposed to allow the importation of fresh 
peppers from Peru into the continental United States and the 
Territories, provided that the fresh peppers were produced in 
accordance with a systems approach consisting of the following 
requirements: Provision of an operational workplan to the Animal and 
Plant Health Inspection Service (APHIS) by the national plant 
protection organization (NPPO) of Peru; importation in commercial 
consignments only; fresh peppers grown in a pest-free, pest-
exclusionary structure approved by and registered

[[Page 55017]]

with the Peruvian NPPO; inspection of registered production sites prior 
to harvest for the fruit boring moth, Neoleucinodes elegantalis 
(Guen[eacute]e), and Puccinia pampeana Speg., the pathogenic fungus 
that causes pepper and green pepper rust, by the Peruvian NPPO or its 
approved designee; trapping both within and around the production site 
for the South American fruit fly (Anastrepha fraterculus (Wiedemann)) 
and the Mediterranean fruit fly (Medfly, Ceratitis capitata 
(Wiedemann)); packinghouse procedures including registration and 
insect-proof cartons, containers, or coverings; and issuance of a 
phytosanitary certificate.
    We also proposed to add a definition for continental United States 
to the regulations in Sec.  319.56-2, as it is used throughout the 
regulations but not defined.
    We solicited comments concerning our proposal for 60 days ending 
June 23, 2015. We received 23 comments by that date. They were from 
trade organizations, the Peruvian NPPO, consumer groups, ports, the 
Peruvian embassy, and private citizens. All comments except one were 
supportive of the proposed action. The remaining comment is discussed 
below.
    The commenter said that APHIS is dependent on local authorities in 
Peru to enforce the requirements set forth in the regulations and the 
operational workplan. The commenter cited the 2015 Index of Economic 
Freedom issued by The Heritage Foundation \2\ as proof that corruption 
within Peru will most certainly occur in connection with the export of 
fresh peppers.
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    \2\ The 2015 Index of Economic Freedom may be viewed here: 
http://www.heritage.org/index/country/peru.
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    Like the United States, Peru is a signatory to the World Trade 
Organization's Agreement on Sanitary and Phytosanitary Measures (SPS 
Agreement). As such, it has agreed to respect the phytosanitary 
measures the United States imposes on the importation of plants and 
plant products from Peru when the United States demonstrates the need 
to impose these measures in order to protect plant health within the 
United States. The PRA that accompanied the proposed rule provided 
evidence of such a need. That being said, as we mentioned in the 
proposed rule, APHIS will monitor and audit Peru's implementation of 
the systems approach for the importation of fresh peppers into the 
continental United States and the Territories. If we determine that the 
systems approach has not been fully implemented or maintained, we will 
take appropriate remedial action to ensure that the importation of 
fresh peppers from Peru does not result in the dissemination of plant 
pests within the United States.
    The commenter argued that the interests of pepper producers in the 
United States need to be given the same consideration as U.S. consumers 
or Peruvian producers. The commenter said that, therefore, APHIS needs 
to ensure that U.S. pepper producers would truly be marginally 
affected. To achieve this end, the commenter suggested that APHIS limit 
the importation of fresh peppers from Peru to domestic out-of-season 
growing months.
    APHIS bases market access on potential pest risk and our capacity 
to mitigate that risk. APHIS may implement different entry requirements 
for a commodity based upon port of entry and time of year in order to 
mitigate the risk posed by a pest, but APHIS does not restrict market 
access for the purposes of eliminating market competition.
    We prepared an initial regulatory flexibility analysis to assess 
the potential economic impacts associated with the proposed rule. The 
commenter stated that the initial regulatory flexibility analysis did 
not fully account for the impacts to domestic producers. The commenter 
said that, in addition to reduced sales, domestic pepper producers are 
at a financial disadvantage due to the fact that reductions in crop 
premium insurance for fresh peppers as detailed in the Agricultural Act 
of 2014 \3\ could potentially lead to further financial losses in the 
event that a portion of a producer's pepper crop was destroyed and the 
remaining crop sold at a lower price due to the increased availability 
of imported peppers in the marketplace.
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    \3\ You may view the Agricultural Act of 2014 on the Internet at 
https://agriculture.house.gov/bill/agricultural-act-2014.
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    The purpose of the economic analysis was to examine whether or not 
the rule will have a significant economic impact on a substantial 
number of small entities. Despite the other pressures on the financial 
viability of domestic pepper producers cited by the commenter, any 
additional impact associated with this rule is expected to be very 
small. An increase in the U.S. fresh pepper supply of less than 0.03 
percent is unlikely to have a significant impact on domestic fresh 
pepper prices and therefore on domestic producers.
    Finally, the commenter maintained that the United States should 
examine any importation requests from Peru in light of what the 
commenter categorized as unfair taxation of U.S. biodiesel in that 
country.
    We disagree. Under the authority of the Plant Protection Act (7 
U.S.C. 7701 et seq.), APHIS may prohibit or restrict the entry of 
plants and plant products into the United States in order to prevent 
the introduction of plant pests or noxious weeds. Trade considerations 
such as those suggested by the commenter do not factor into such 
determinations.
    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.

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 rule will amend the regulations to allow the importation of 
fresh peppers from Peru into the continental United States and the 
Territories when a systems approach to pest risk mitigation is used to 
prevent the introduction of quarantine pests. The systems approach will 
integrate prescribed mitigation measures that cumulatively achieve the 
appropriate level of phytosanitary protection.
    Peru produced an average of about 9,600 metric tons (MT) of fresh 
peppers annually from 2005 through 2011. From 2010 to 2014, fresh 
pepper exports from Peru averaged 356 MT annually, the equivalent of 
about 4 percent of its annual fresh pepper production.
    Based on Peru's pepper production area and yields, APHIS estimates 
in the pest risk assessment for this rule that no more than 22 
containers (440 MT) of fresh peppers will be imported from Peru into 
the United States annually. This quantity is the equivalent of less 
than 0.03 percent of annual U.S. fresh pepper consumption.
    U.S. pepper producers and current foreign suppliers will face 
increased competition because of the Peruvian exports. However, 
economic effects of the rule will be minimal, given the very

[[Page 55018]]

small quantity of pepper expected to be imported from Peru.
    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 fresh peppers to be imported into the 
continental United States and the Territories from Peru. 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 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. 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 final rule, which were 
filed under 0579-0434, 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 EGovernment 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 final 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 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. Section 319.56-2 is amended by adding in alphabetical order a 
definition of continental United States to read as follows:


Sec.  319.56-2  Definitions.

* * * * *
    Continental United States. The 48 contiguous States, Alaska, and 
the District of Columbia.
* * * * *


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


Sec.  319.56-73  Peppers From Peru.

    Fresh peppers (Capsicum annum L., Capsicum baccatum L., Capsicum 
chinense Jacq., Capsicum frutescens L., and Capsicum pubescens Ruiz & 
Pav.) may be imported into the continental United States and its 
Territories only under the conditions described in this section. These 
conditions are designed to prevent the introduction of the following 
quarantine pests: Anastrepha fraterculus (Wiedemann), South American 
fruit fly; Ceratitis capitata (Wiedemann), Mediterranean fruit fly; 
Neoleucinodes elegantalis (Guen[eacute]e), a fruit boring moth; and 
Puccinia pampeana Speg., a pathogenic fungus that causes pepper and 
green pepper rust.
    (a) Operational workplan. The national plant protection 
organization (NPPO) of Peru must provide an operational workplan to 
APHIS that details the activities that the NPPO of Peru 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 
quarantine pest survey intervals and other specific requirements as set 
forth in this section.
    (b) Commercial consignments. Peppers from Peru 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 export program 
must be registered with the Peruvian NPPO.
    (3) The production sites must be inspected prior to harvest for 
Neoleucinodes elegantalis (Guen[eacute]e) and Puccinia pampeana Speg. 
If either of these pests, or other quarantine pests, are found to be 
generally infesting or infecting the production site, the NPPO of Peru 
will immediately prohibit that production site from exporting peppers 
to the continental United States and its Territories and notify APHIS 
of this action. The prohibition will remain in effect until the 
Peruvian NPPO and APHIS determine that the pest risk has been 
mitigated.
    (4) The production sites must contain traps for the detection of 
Anastrepha fraterculus (Wiedemann) and Ceratitis capitata (Wiedemann) 
both within and around the structures. Internal traps must be set for 
the duration of the time the production site is used to produce peppers 
for export to the continental United States or the Territories. 
External traps must be set for at least 2 months before export and 
trapping must continue to the end of the harvest as follows:
    (i) Traps with an approved protein bait must be placed inside the 
production site at a density of four traps per hectare, with a minimum 
of two traps per structure. Traps must be serviced once every 7 days.
    (ii) If a single Anastrepha fraterculus (Wiedemann) or Ceratitis 
capitata (Wiedemann) is detected inside a registered production site or 
in a consignment, the registered production site will lose its ability 
to export peppers to the continental United States or its Territories 
until APHIS and the Peruvian NPPO mutually determine that risk 
mitigation is achieved.
    (iii) Traps with an approved protein bait must be placed inside a 
buffer area 500 meters wide around the registered production site, at a 
density of 1 trap per 10 hectares and a minimum of 10 traps. These 
traps must be checked at least once every 7 days. At least one of these 
traps must be near the production site.
    (iv) Capture of 0.7 or more Anastrepha fraterculus (Wiedemann) or 
Ceratitis capitata (Wiedemann) per trap per week will delay or suspend 
the harvest, depending on whether harvest has begun, for consignments 
of peppers from that registered production site until APHIS and the 
Peruvian NPPO can agree that the pest risk has been mitigated.
    (v) The Peruvian NPPO must maintain records of trap placement, 
checking of traps, and any quarantine pest captures. The Peruvian NPPO 
must maintain an APHIS-approved quality control program to monitor or 
audit the trapping program. The trapping records must be maintained for 
APHIS review.

[[Page 55019]]

    (d) Packinghouse procedures. (1) All packinghouses that participate 
in the export program must be registered with the Peruvian NPPO.
    (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 continental United States or 
its Territories. These safeguards must remain intact until arrival in 
the continental United States or its Territories or the consignment 
will be denied entry into the continental United States or its 
Territories.
    (3) During the time the packinghouse is in use for exporting 
peppers to the continental United States or its Territories, 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 of inspection issued by the 
Peruvian NPPO stating that the fruit in the consignment has been 
produced in accordance with the requirements of the systems approach in 
7 CFR 319.56-73.

(Approved by the Office of Management and Budget under control 
number 0579-0434)

    Done in Washington, DC, this 9th day of September 2015.
 Michael C. Gregoire,
 Associate Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2015-23037 Filed 9-11-15; 8:45 am]
 BILLING CODE 3410-34-P