2014-01581. Importation of Fresh Bananas From the Philippines Into Hawaii and U.S. Territories

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

We are proposing to amend the regulations concerning the importation of fruits and vegetables to allow the importation of fresh bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands. As a condition of entry, the bananas would have to be produced in accordance with a systems approach that would 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 would also have to be accompanied by a phytosanitary certificate with an additional declaration stating that they were grown, packed, inspected, and found to be free of quarantine pests in accordance with the proposed requirements. This action would allow the importation of bananas from the Philippines while continuing to protect against the introduction of plant pests into Guam, Hawaii, and the Northern Mariana Islands.

DATES:

We will consider all comments that we receive on or before March 31, 2014.

ADDRESSES:

You may submit comments by either of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov/​#!documentDetail;​D=​APHIS-2013-0045-0001.
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2013-0045, 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-2013-0045 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 [phone] before coming.

FOR FURTHER INFORMATION CONTACT:

Ms. Meredith Jones, Senior Regulatory Coordination Specialist, RPM, RCC, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; [phone].

SUPPLEMENTARY INFORMATION:

Background

The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-64, 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.

The national plant protection organization (NPPO) of the Philippines has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow bananas from the Philippines to be imported into Guam, Hawaii, and the Northern Mariana Islands. Currently, bananas may be imported from the Philippines into the continental United States as a result of a rule published in the Federal Register and effective on February 7, 2013 (78 FR 8957-8960, Docket No. APHIS-2011-0028). The rule allows the importation of bananas from the Philippines into the continental United States under a systems approach described in the regulations under § 319.56-58.

As part of our evaluation of the Philippines' request, we prepared a pest risk assessment (PRA), titled “Importation of Banana, Musa spp., as Fresh, Hard Green Fruit From the Philippines to Guam, Hawaii, and the Northern Mariana Islands” (January 29, 2013). The PRA evaluates the risks associated with the importation of green bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands from the Philippines.

The PRA identified 62 pests of quarantine significance present in the Philippines that could be introduced into Guam, Hawaii and the Northern Mariana Islands through the importation of green bananas: 2 mites (Brevipalpus spp.), 5 beetles, 5 flies (3 Bactrocera spp. fruit flies, 1 house fly, and 1 black fly), 35 scales, 4 moths, 4 grasshoppers, 3 thrips, 1 snail, 1 weed, and 2 bacteria. For a full list of the pests, please see the PRA.

Based on the information contained in the PRA, APHIS has determined that measures beyond standard port-of-entry inspection are required to mitigate the risks posed by the quarantine pests with bananas from the Philippines. To recommend specific measures to mitigate those risks, we prepared a risk management document (RMD). Copies of the PRA and 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).

Based on the recommendations of the RMD, we are proposing to allow the importation of bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands only if they are produced in accordance with a systems approach. The systems approach we are proposing would require:

• Registration, monitoring, and oversight of places of production;
• Trapping for Bactrocera spp. fruit flies 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.

Bananas from the Philippines would also be required 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.

The proposed systems approach to pest mitigation for the importation of bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands has been used successfully to mitigate the risks associated with the importation of bananas from the Philippines into the continental United States (§ 319.56-58). The RMD for bananas from the Philippines evaluated the effectiveness of these measures against quarantine pests identified in the PRA and concluded that the provisions in § 319.56-58, 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 Guam, Hawaii, and the Northern Mariana Islands. Therefore, we are proposing to amend § 319.56-58 to allow the importation of bananas from the Philippines into the United States that would include the continental United States, Guam, Hawaii, and the Northern Mariana Islands. The mitigation measures in the systems approach are outlined in greater detail below.

The introductory text of § 319.56-58 currently lists the 12 quarantine pests of concern associated with the importation of bananas from the Philippines into the continental United States. As noted above, the number of quarantine pests of concern associated with the importation of those bananas into Guam, Hawaii, and the Northern Mariana Islands is 62. Given that large number, we are proposing to no longer list the pests of concern in the introductory text of the section and would instead list the pests in the operational workplan described below.

General Requirements

The importation of bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands would be allowed under an operational workplan. A operational workplan is an agreement between APHIS' Plant Protection and Quarantine (PPQ) program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities that specifies in detail the phytosanitary measures that will comply with our regulations governing the import or export 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 export programs. Operational workplans also establish how specific phytosanitary issues are dealt within the exporting country and make clear who is responsible for dealing with those issues.

Paragraph (a)(1) of § 319.56-58 requires the NPPO of the Philippines to provide an operational workplan to APHIS that details activities that the NPPO of the Philippines will, subject to APHIS' approval of the workplan, carry out to meet the requirements of the regulations. The bananas would have to be grown at places of production that are registered with the NPPO of the Philippines and that meet the requirements for places of production. Paragraph (a)(2) requires bananas to be grown at places of production that are registered with the NPPO of the Philippines and that meet the proposed requirements for places of production that are discussed later in this document. It also requires that each registered place of production renew its registration annually.

Paragraph (a)(3) requires the bananas to be packed for export to the United States in packinghouses that meet the packinghouse requirements that are described later in this document.

The bananas must be imported in commercial consignments only. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. 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 and is often grown with little or no pest control.

As such, paragraph (a)(4) requires the bananas to be imported in commercial consignments only. That provision would apply to bananas from the Philippines to be imported into Guam, Hawaii, and the Northern Mariana Islands as well as the continental United States.

Monitoring and Oversight

The systems approach includes monitoring and oversight requirements, located in paragraph (b) of § 319.56-58, to ensure that the required phytosanitary measures are properly implemented through the process of growing and packing of bananas for export to the United States.

Paragraph (b)(1) requires the NPPO of the Philippines to visit and inspect registered places of production monthly, starting at least 3 months before harvest and continuing until the end of the shipping season, to verify that the growers are complying with the requirements and follow pest control guidelines, when necessary, to reduce quarantine pest populations. The NPPO of the Philippines must verify that the growers are complying with the fruit fly trapping requirements and would have to certify that each place of production has effective fruit fly trapping programs. Any personnel conducting trapping would have to be trained and supervised by the NPPO of the Philippines. APHIS would monitor the places of production by conducting random and scheduled inspections.

Under paragraph (b)(2), if the NPPO of the Philippines finds that a place of production or packinghouse is not complying with the regulations, no fruit from the place of production or packinghouse is 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.

Paragraph (b)(3) requires the NPPO of the Philippines to retain all forms and documents related to export program activities in groves and packinghouses for at least 1 year and, as requested, provide them to APHIS for review. Such forms and documents include, but are not limited to, fruit fly trapping and inspection records.

Fruit Fly Trapping To Establish Places of Production With Low Prevalence

Paragraph (c) of § 319.56-58 provides for the use of trapping to demonstrate that registered places of production have a low prevalence of the Bactrocera spp. fruit flies. Although the PRA has determined that the three Bactrocera spp. are potential pests of bananas from the Philippines, bananas are known to be poor hosts to most species of fruit flies. However, B. musae is recorded as attacking green bananas. Trapping to demonstrate an area of low pest prevalence would therefore be an appropriate mitigation for fruit flies.

Beginning at least 3 months before harvest begins and continuing through the end of the harvest, trapping would have to 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 the Bactrocera spp. fruit flies. APHIS-approved traps baited with APHIS-approved plugs would have to be used and serviced at least once every 2 weeks.

During the trapping, when traps are serviced, if the Bactrocera spp. fruit flies are trapped at a registered 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.

Although the Bactrocera spp. fruit flies have been identified as pests of banana in the Philippines, we do not want to impose trapping requirements if they are not justified by the presence of fruit fly larvae in Philippine bananas; as noted earlier, bananas are poor hosts of fruit flies in general, especially when harvested green. Under the heading “NPPO of the Philippines Inspection” later in this document, we describe requirements for cutting bananas to inspect for internal feeders such as fruit fly larvae. Currently, paragraph (c) provides that the fruit fly trapping requirements would no longer apply if, by February 9, 2015, no fruit fly larvae are found during such inspections, inspections are no longer required. We are proposing to provide that the fruit fly trapping requirements described in proposed paragraph (c) would no longer apply if, after 2 years from the effective date of a final rule following this proposed rule, such inspections do not find any larvae of the Bactrocera spp. fruit flies. Extending the date will provide APHIS with additional fruit fly trapping data, which are especially important given the vulnerability of Guam, Hawaii, and the Northern Mariana Islands to fruit fly introductions.

The date on which trapping would no longer be required would be included in the regulations. If no fruit fly larvae are found, we would publish a notice in the Federal Register to confirm that fruit fly trapping would no longer be required. If fruit fly larvae are found, we would amend the regulations to address the demonstrated risk.

Bagging Requirements

Each place of production must follow a pest management program specified by the NPPO of the Philippines to reduce populations of quarantine pests. This includes applying pesticides to reduce pest populations and bagging bananas after flower drop with plastic bags impregnated with pesticides.

As such, paragraph (d) provides that plastic bags impregnated with pesticides must cover the bananas during the growing period. If a pesticide bag falls off or is torn so that fruit flies can enter, that fruit would no longer be eligible for export to the United States. This growing requirement would prevent quarantine pests from attacking the bananas.

Harvesting Requirements

Paragraph (e) of § 319.56-58 sets out requirements for harvesting bananas. Under paragraph (e)(1), bananas would have to be harvested at a hard green stage.

Harvesting bananas at a hard green stage (i.e., bananas with no yellow or green color break) is a standard industry practice for banana production in Central and South America, the Philippines, Hawaii, and most of the world because ripe bananas are more likely to be infested by fruit flies. Inspectors at the port of entry would need to determine that:

• Bananas shipped by air are still green upon arrival in the United States;
• Bananas shipped by sea are either green upon arrival in the United States or yellow but firm.

Under paragraph (e)(2), harvested bananas are required to be placed in field cartons or containers that are marked with the official registration number of the place of production. The fruit would have to be safeguarded from exposure to fruit flies from harvest to export, including being packaged so as to prevent access by fruit flies and other injurious insect pests. These requirements ensure that APHIS and the NPPO of the Philippines can identify the place of production where the bananas were produced if inspectors find quarantine pests in the fruit either before export or at the port of entry. Places of production with quarantine pests would be removed from the program.

Post-Harvesting Processing

As such, paragraph (f) of § 319.56-58 provides that all damaged fruit would have to be culled at the packinghouse. Fruit with broken or bruised skin is more susceptible to infestation by pests than undamaged fruit. In addition, the fruit would have to be washed with a high pressure water spray and with soap and water. This requirement would remove mites, mealy bugs, scale insects, and other surface-feeding quarantine pests from the fruit prior to export.

Packinghouse Requirements

The RMD suggests that the packinghouses prevent the entry of pests with double-door entry and other measures designed to exclude fruit flies and other pests of quarantine concern. The packinghouse operations for export of bananas must be monitored by the NPPO of the Philippines. No other fruit is allowed in a packinghouse during the time export fruit is being packed.

Such requirements are contained in paragraph (g) of § 319.56-58. Specifically, paragraph (g)(1) provides that the packinghouse would have to have double doors at the entrance to the facility and at the interior entrance to the area where the bananas are packed to exclude fruit flies and other pests of quarantine concern. Paragraph (g)(2) requires that bananas for export be packed into new, clean boxes, crates, or other packing material. Paragraph (g)(2) also requires that bananas intended for export to the United States be labeled with the name and location of the packinghouse marked on the boxes, and segregated from bananas intended for other markets. These requirements would ensure that APHIS and the NPPO of the Philippines could identify the packinghouse at which the fruit was packed if inspectors find quarantine pests in the fruit either before export or at the port of entry.

Paragraph (g)(3) requires that shipping documents accompanying consignments of bananas from the Philippines that are exported to the United States 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.

Paragraph (g)(4) requires that the packinghouse operations for export of bananas be monitored by the NPPO of the Philippines. This requirement would ensure that the packinghouses remain compliant with the regulations.

NPPO of the Philippines Inspection

To ensure that the mitigations required in the systems approach are effective at producing fruit free of the targeted quarantine pests, we would require the NPPO of the Philippines to inspect the fruit after harvest. Paragraph (h)(1) of § 319.56-58 requires inspectors from the NPPO of the Philippines to certify that bananas were harvested at the hard green stage.

Under paragraph (h)(2), the NPPO of the Philippines is required to 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 fruit from each place of production for all the quarantine pests. (The paragraph currently states that the inspectors must visually inspect for quarantine pests listed in the introductory text of the section; we would amend the text to refer to the quarantine pests listed in the operational workplan to conform with the proposed change described above.) The inspectors must also cut fruit to inspect for quarantine pests that are internal feeders, which include larvae of the three Bactrocera fruit fly species (B. musae, B. occipitalis, and B. philippinensis). We have determined that inspection can serve as an effective mitigation for the risk associated with these pests in bananas exported from the Philippines.

If any Bactrocera spp. fruit flies are detected in this inspection, the place of production where the infested bananas were grown will immediately be suspended from the export program 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 ineligible for exportation to the United States.

Phytosanitary Certificate

To certify that the bananas from the Philippines have been grown and packed in accordance with the requirements of § 319.56-58, paragraph (i) requires each consignment of bananas imported from the Philippines into the United States to be accompanied by a phytosanitary certificate issued by the NPPO of the Philippines with an additional declaration stating that the bananas in the consignment were grown, packed, and inspected in accordance with the systems approach in § 319.56-58.

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 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is summarized below, regarding the economic effects of this proposed rule on small entities. 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).

Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

Currently, about 4.1 million metric tons (MT) of bananas are imported into the United States every year. In 2011, Hawaii's banana harvest totaled about 7,900 MT compared to U.S. imports of about 4.1 million MT. We do not have information at this point on the quantity of bananas that the Philippines expects to ship to the State of Hawaii or to U.S. territories, or the quantity of bananas already imported into these destinations. We note that for a recent rulemaking to allow banana imports from the Philippines into the continental United States, that the quantity was expected to be relatively insignificant, equivalent to about 0.05 percent of U.S. imports from other countries, 4.1 million MT. Consumers in Hawaii and U.S. territories would benefit from the additional source of fresh bananas. APHIS does not expect the proposed rule to have a significant economic impact on small entities.

Executive Order 12988

This proposed rule would allow bananas to be imported into Guam, Hawaii, and the Northern Mariana Islands from the Philippines. If this proposed rule is adopted, State and local laws and regulations regarding bananas imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits 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.

National Environmental Policy Act

We made an environmental assessment that reviewed and analyzed the potential impacts of importation of bananas from the Philippines into the continental United States available with our proposal to allow that importation, which was published in the Federal Register on May 30, 2012 (77 FR 31829-31830, Docket No. APHIS-2011-0028). The environmental assessment was 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). Subsequently, we published a finding of no significant impact along with the February 2013 final rule mentioned earlier in this document.

We have reviewed the potential environmental impacts of allowing the importation of bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands and found that they are the same as those described in the earlier environmental assessment; therefore, we are extending our finding of no significant impact to include this action as well.

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-2013-0045. Please send a copy of your comments to: (1) Docket No. APHIS-2013-0045, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

Allowing the importation of fresh bananas from the Philippines into Guam, Hawaii, and the Northern Mariana Islands will require the completion of the following information: A bilateral workplan, registration of production sites, monitoring and oversight of production sites, maintenance of records, forms, and documents, marking of production sites with registration numbers, identification of packinghouses name location, and a phytosanitary certificate.

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 0.78 hours per response.

Respondents: Foreign government, importers and growers of bananas from the Philippines.

Estimated annual number of respondents: 46.

Estimated annual number of responses per respondent: 5.34.

Estimated annual number of responses: 246.

Estimated total annual burden on respondents: 192 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at [phone].

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 Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at [phone].

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

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.

2. Section 319.56-58 is amended as follows:

a. The introductory text is revised;

b. In paragraph (c), the date, “February 9, 2015” is removed and the date “[ date 2 years after the effective date of final rule]” is added in its place;

c. In paragraph (h)(2), in the second sentence, the words “introductory text of this section” are removed and the words “operational workplan required by paragraph (a)(1) of this section” are added in their place.

The revision reads as follows:

§ 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, Guam, Hawaii, and the Northern Mariana Islands from the Philippines only under the conditions described in this section.

* * * * *

Done in Washington, DC, this 23rd day of January 2014.

Kevin Shea,

Administrator, Animal and Plant Health Inspection Service.