Importation of Fresh Bananas From the Philippines Into Hawaii and U.S. Territories, 61216-61221 [2014-24246]
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Federal Register / Vol. 79, No. 197 / Friday, October 10, 2014 / Rules and Regulations
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 319
[Docket No. APHIS–2013–0045]
RIN 0579–AD82
Importation of Fresh Bananas From
the Philippines Into Hawaii and U.S.
Territories
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
AGENCY:
We are amending 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 will
have to be produced in accordance with
a systems approach that includes
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 into Guam, Hawaii, and the
Northern Mariana Islands while
continuing to protect against the
introduction of plant pests.
DATES: Effective November 10, 2014.
FOR FURTHER INFORMATION CONTACT: Mr.
George Apgar Balady, Senior Regulatory
Policy Specialist, Regulatory
Coordination and Compliance, PPQ,
APHIS, 4700 River Road Unit 133,
Riverdale, MD 20737–1236; (301) 851–
2240.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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
the United States from certain parts of
the world to prevent the introduction
and dissemination of plant pests within
the United States.
On January 28, 2014, we published in
the Federal Register (79 FR 4410–4414,
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Docket No. APHIS–2013–0045) a
proposal 1 to amend the regulations to
allow the importation of bananas from
the Philippines into Guam, Hawaii, and
the Northern Mariana Islands. We also
prepared a pest risk assessment (PRA)
entitled ‘‘Importation of Banana, Musa
spp., as Fresh, Hard Green Fruit from
the Philippines to Guam, Hawaii, and
the Northern Mariana Islands’’ (January
2013). The PRA assesses the risks
associated with the importation of fresh
bananas from the Philippines into
Guam, Hawaii, and the Northern
Mariana Islands. Based on the
information contained in the PRA, we
prepared a risk management document
(RMD) that recommends appropriate
mitigation measures needed beyond the
port-of-entry inspection requirements.
Based on the recommendations of the
RMD, we proposed to allow the
importation of bananas from the
Philippines into Hawaii and U.S.
Territories only if they were produced
in accordance with a systems approach.
The systems approach we proposed
included requirements for:
• Registration, monitoring, and
oversight of places of production;
• Trapping for the fruit flies
Bactrocera spp. to establish lowprevalence 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 national plant
protection organization (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. These are the
same conditions under which bananas
from the Philippines were already
authorized for importation into the
continental United States.
We solicited comments on the
proposed rule for 60 days ending March
31, 2014. We received 46 comments
from private citizens by the close of the
comment period. Three of the
commenters supported the proposed
rule. The issues raised by the other
commenters are discussed below by
topic.
1 To view the proposed rule, supporting
documents, and the comments we received, go to
https://www.regulations.gov/#!docketDetail;D=
APHIS-2013-0045.
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General Comments
The majority of commenters stated
that the Animal and Plant Health
Inspection Service (APHIS) should
prohibit the importation of bananas
from other countries into Hawaii and
U.S. territories, as locally grown
bananas are plentiful or because
importing commodities from other
countries would conflict with local food
initiatives. Many commenters expressed
concerns that the importation of lowerpriced bananas from other countries
would make it more difficult for local
producers to compete within the
market. Several commenters objected to
using tax dollars to implement and
enforce the proposed regulations rather
than using them to support local
growers.
Such prohibitions would be beyond
the scope of APHIS’ statutory authority
under the Plant Protection Act (7 U.S.C.
7701 et seq., referred to below as the
PPA). Under the PPA, APHIS may
prohibit the importation of a fruit or
vegetable into the United States only if
we determine that the prohibition is
necessary in order to prevent the
introduction or dissemination of a plant
pest or noxious weed within the United
States. APHIS does not have the
authority to restrict imports solely on
the grounds of potential economic
effects on domestic entities that could
result from increased imports. Current
Hawaiian banana production provides
considerable banana supply to the
Hawaiian market, however it is
apparently not enough to satisfy the
demand for banana consumption in
Hawaii. Any impact of the rule on U.S.
banana producers in Hawaii and U.S.
territories is likely to be small. To the
extent that new imports of bananas from
the Philippines arrive in Hawaii and
U.S. territories, consumers will benefit
from this additional source of fresh
bananas. In addition, the importation of
Philippine bananas is expected to add
jobs in the produce shipping and
marketing industry within Hawaii and
the Territories, which would help offset
any potential losses. Tax dollars would
not be used to support the proposed
regulations. The importation of
Philippine bananas would require the
NPPO of the Philippines to enter into a
trust fund agreement with APHIS.
Under the trust fund agreement, the
NPPO of the Philippines would be
required to pay in advance all estimated
costs that APHIS expects to incur in
providing inspection services in the
exporting country. This includes
administrative expenses such as
inspector salaries and travel expenses.
The cost of inspecting shipments at U.S.
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ports of entry is recovered through user
fees.
Additionally, as a signatory to the
World Trade Organization Agreement
on Sanitary and Phytosanitary
Measures, the United States has agreed
that any prohibitions it places on the
importation of fruits and vegetables will
be based on scientific evidence, and will
not be maintained without sufficient
scientific evidence. The blanket
prohibitions requested by the
commenters would not be in keeping
with this agreement.
One commenter suggested that we
should allow bananas from the
Philippines to be imported into Alaska,
where there is no local production,
rather than importing bananas into
Hawaii and the U.S. territories.
Under § 319.56–58, bananas from the
Philippines are already allowed into the
continental United States, including
Alaska.
One commenter expressed frustration
that bananas grown in Hawaii could not
be exported, while bananas grown in
other countries could be imported into
Hawaii.
APHIS has an export staff to aid
growers in exporting their agricultural
commodities to other countries. Contact
information for this staff is available on
the APHIS Web site at https://
www.aphis.usda.gov/ under the Plant
Health tab.
Monitoring and Oversight
Under paragraph (b)(3), the NPPO of
the Philippines would be required 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. One commenter pointed out
that the International Plant Protection
Convention (IPPC) requires that records
be retained for at least the 2 previous
years or as long as necessary to support
the export program from areas of low
pest prevalence.
Requiring the NPPO of the
Philippines to retain records for 1 year
is consistent with our recordkeeping
requirements for all offshore
phytosanitary mitigation programs.
From past experience, retaining records
for longer than 1 year has provided little
value in traceback efforts as any issues
that may occur are generally related to
the current growing season. While we
do not require NPPO’s to retain records
for longer than 1 year, this does not
pertain to APHIS pest interception
records. Those records are maintained
for the life of the export program.
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One commenter stated that certain
growers may import bananas from
smaller growers to meet consumer
demand and suggested that production
areas be canvassed and shipments
inspected to ensure that bananas not of
approved varieties or stage of maturity
are prohibited importation.
Just one interception of a target pest
would be enough to cause APHIS to
suspend a commercial import program
until APHIS and the Philippine NPPO
agree that the pest eradication measures
taken have been effective and that the
pest risk has been eliminated. Because
bananas from non-registered places of
production present a greater pest risk
than does fruit grown in registered
places of production, we believe that it
is unlikely that the growers and packers
in a registered place of production
would allow their entire export
operation to be jeopardized by allowing
potentially infested fruit from nonregistered places of production to be
commingled with their export-quality
fruit. In addition to that purely
economic disincentive, APHIS and
Philippine NPPO inspectors will also be
present in the places of production and
packinghouses during the shipping
season to ensure that all requirements of
the regulations are being observed. That
includes ensuring that only green
bananas are packed for export. There are
no restrictions on the variety of bananas
that can be imported from the
Philippines under the regulations.
The commenter also suggested that
shipments from noncompliant
production areas be restricted until the
production areas are determined to be in
compliance with the regulations per the
NPPO and APHIS, and that records be
kept regarding banana varieties and
stage of maturity.
The NPPO of the Philippines would
be responsible for enforcing the
requirements in the operational
workplan, including maintaining
records of growers and packers and
periodically conducting inspections or
audits to ensure that growers are
producing bananas in accordance with
the systems approach. 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.
Inspection
The majority of commenters
expressed concern regarding the
potential for Philippine bananas to act
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as a pathway for the introduction of
insect pests and diseases into Hawaii
and the U.S. territories.
Two commenters expressed concern
about the ability to detect diseases in
their incubation period and control
them following establishment.
APHIS has seldom intercepted pests
on commercial bananas when produced
under a systems approach including
bagging bananas after flower drop with
plastic bags impregnated with pesticides
and harvest of green bananas. Therefore,
based on this track record, we are
confident the NPPO of the Philippines
can effectively oversee the application
of the proposed systems approach to
importing Philippine bananas to Guam,
Hawaii, and the Northern Mariana
Islands. We evaluated the potential for
diseases to follow the pathway of
bananas from the Philippines into
Hawaii and the U.S. territories in our
PRA and determined that the only
disease of concern that could follow that
pathway is Ralstonia solanacearum.
However, based on the requirements of
the proposed systems approach, such as
bagging the inflorescence at the bending
stage, which prevents access to the fruit
by disease vectors, and standard
industry procedures such as disinfecting
tools, we determined that bananas from
the Philippines are not likely to present
a risk of introducing R. solanacearum to
Hawaii and the U.S. territories. In
addition, APHIS has no record of any
interceptions of R. solanacearum on
banana imports from any country.
Therefore, because diseases are not
likely to follow the pathway of bananas,
the potential latency of disease
symptoms is not an issue.
Several commenters expressed
concern that Hawaii and the U.S.
territories do not have the resources
necessary to implement and enforce the
proposed regulations, which would
increase the risk of accidental or
incidental introduction of quarantine
pests and diseases.
As stated previously, any required
oversight by APHIS in the Philippines
will be paid for using monetary support
from the industry through establishment
of a trust fund. Inspection at the port of
arrival will be conducted by APHIS
employees in conjunction with Customs
and Border Protection, and will be
funded by user fees. Hawaii and the
U.S. territories will not have any
implementation or enforcement
responsibilities for the proposed
regulations.
Several commenters called for
increased inspections of bananas from
the Philippines to mitigate pest risk.
One commenter stated that, because the
PRA identified five times the number of
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significant quarantine pests for Guam,
Hawaii, and the Northern Mariana
Islands than were identified in the PRA
prepared for the mainland United
States, the proposed systems approach
should require a stricter inspection
process. However, the commenter did
not elaborate on what aspect of the
inspection process could be improved.
One commenter stated that large
inspection fees should be charged for
imports, including banana imports, in
order to prevent the importation of pests
and diseases.
As stated previously, APHIS seldom
intercepts pests on commercially
produced bananas produced under the
proposed systems approach. Therefore,
APHIS considers the multiple layers of
safeguards sufficient to mitigate the risk
posed by the quarantine pests listed in
the PRA. These mitigations are based on
those currently used in Central and
South America for export of bananas to
the United States. User fees are charged
commensurate with the cost of
inspecting imports. We are unable to
charge more for inspecting specific
goods from certain countries.
One commenter asked why we do not
have a set sampling rate established in
§ 319.56–58(h)(2). The commenter
expressed concern that, in the absence
of a current sampling rate, monitoring of
the procedures required of the
Philippine NPPO by APHIS will be
insufficient.
Rather than establishing a sampling
rate within the regulations, APHIS has
determined that setting a sampling rate
within the operational workplan
provides greater flexibility in the event
that the sampling rate must be changed
in the future. For most imported fruit,
our sampling regime is designed to
detect pest infestations if the pest is
present in more than 1 or 2 percent of
sampled fruit. This corresponds to
sampling 150 to 300 fruit.
PRA and RMD
One commenter expressed concern
that varieties of banana from the
Philippines would be imported for
which no risk analysis has been
conducted or risk mitigations
determined due to lack of published
data.
The PRA considered the risks
associated with the importation of all
banana varieties.
Several commenters noted that the
PRA does not assess the risk that
quarantine pests may pose to
endangered banana or other species
found within Hawaii.
The PRA found that no pests were
likely to follow the pathway of mature
green bananas because the stage of
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maturity at harvest and several other
standard production and post-harvest
practices, as detailed in the PRA, were
determined to be adequate mitigations.
Because no pests were likely to follow
the pathway, no further analysis was
conducted.
Several commenters referenced pests
that have become established in Hawaii
or the U.S. territories as a result of the
importation of commodities. In the
RMD, we stated that between 3.8 and 4
million metric tons of bananas were
imported into the United States from
Central and South America each year
between 2003 and 2007, however, only
1,400 actionable quarantine pests were
intercepted on imported bananas in that
time period. One commenter stated that
citing the small number of pest
interceptions on bananas from Central
and South America versus the volume
of shipments is misleading given that
the number of pests that remained
undetected would be correspondingly
larger for larger shipments.
Most pest interceptions, specifically
fruit fly, occur in fruit seized in
passenger baggage rather than in
commercial imports. Fruit in passenger
baggage will continue to be prohibited
under this rule. While the commenter
may be correct that larger shipments
could potentially contain larger
numbers of undetected quarantine pests,
just one interception of a target pest in
a commercial shipment would be
enough to cause APHIS to suspend a
commercial import program. This was
the case for the suspension of the
Spanish clementine import program
when a very small number of live
Mediterranean fruit fly (Ceratitis
capitata) larvae were discovered in a
shipment. Importations of clementine
from Spain did not resume until a
review was conducted and pest
mitigations strengthened. Therefore, we
consider the multiple layers of
safeguards in the proposed rule
sufficient to mitigate the risk posed by
the quarantine pests listed in the PRA.
One commenter stated that all
bananas grown in production areas
should be produced from tissue culture
in order to deter disease and asked
whether this is currently the case in the
Philippines. The commenter further
stated that, since tissue culture for
specialty bananas may not be available,
those banana varieties may need to be
restricted from importation until tissue
culture is viable.
The Philippines has indicated that
producing bananas using tissue culture
is part of their standard industry
practices.
The PRA lists Imperata cylindrica L.
as a Federal noxious weed present in
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the Philippines, but that is not likely to
follow the pathway of Philippine
bananas due to production procedures
and post-harvest processing
requirements, such as bagging of
bananas during the growing season and
the use of high-pressure water sprays.
One commenter stated that these
measures are insufficient to prevent
introduction of the weed to Hawaii and
suggested that bananas grown in fields
near I. cylindrica L. be inspected and
safeguarded from contamination with I.
cylindrica L. seeds.
Paragraph (b)(1) requires that the
Philippine NPPO conduct inspections of
places of production beginning 3
months before harvest and throughout
the shipping season to ensure
compliance with the regulations. In
addition, APHIS may also conduct
inspections of production areas as
necessary to ensure compliance. This
inspection regimen coupled with the
use of bagging and high-pressure water
sprays makes it highly unlikely that
seeds of I. cylindrical L. could
contaminate shipments of Philippine
bananas. Therefore, the PRA concluded
the weed was highly unlikely to follow
the pathway.
One commenter raised concerns about
the chemicals used in the Philippines to
treat bananas in the field. The
commenter stated that these chemicals
are illegal in the United States and
questioned whether the field inspectors
in the Philippines would actually test
the bananas for disease and pesticide
residues prior to exportation. A second
commenter raised concerns about the
quality of life of Filipino field workers
and suggested revisions to the proposed
systems approach to ensure their safety
and wellbeing, particularly when
handling harmful pesticides.
While the United States does not have
direct control over pesticides that are
used on food commodities such as
bananas in other countries, there are
regulations in the United States
concerning the importation of food to
ensure that commodities do not enter
the United States containing illegal
pesticide residues. Through section 408
of the Federal Food, Drug, and Cosmetic
Act, the Environmental Protection
Agency (EPA) has the authority to
establish, change, or cancel tolerances
for food commodities. These EPA-set
tolerances are the maximum levels of
pesticide residues that have been
determined, through comprehensive
safety evaluations, to be safe for human
consumption. Tolerances apply to both
food commodities that are grown in the
United States and food commodities
that are grown in other countries and
imported into the United States. The
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EPA tolerance levels are enforced once
the commodity enters the United States.
Chemicals such as DDT that are banned
in the United States do not have
tolerances on food commodities. Federal
Government food inspectors are
responsible for monitoring food
commodities that enter the United
States to confirm that tolerance levels
are not exceeded and that residues of
pesticide chemicals that are banned in
the United States are not present on the
commodities. Tolerance levels for all
chemicals that are acceptable for use on
bananas may be found in EPA’s
regulations in 40 CFR 180.101 through
180.2020. Tolerance information can
also be obtained at https://www.epa.gov/
pesticides/food/viewtols.htm. Pesticide
use in the Philippines is regulated
through the Fertilizer and Pesticide
Authority (FPA). Under this authority,
all pesticides are required to be
registered and all pesticide handlers
must be licensed. In addition, the FPA
restricts or bans the use of any pesticide
when evidence shows that the pesticide
is an imminent hazard to crops, fish,
livestock, the environment, or public
health.
One commenter stated that repeated
use of pesticides and bait sprays may
increase pest resistance and that the
operational workplan must include a
requirement to review the long-term
efficacy of pesticides.
APHIS uses information based on
studies conducted by the EPA to
determine the appropriate chemical and
dosage requirements for use against
quarantine pests. It is outside the scope
of APHIS’ mission to review pesticide
resistance.
One commenter pointed out
inconsistencies between the PRA and
RMD and expressed concern regarding
the omission of certain standard
industry practices from the
requirements in the RMD. The
commenter stated that removing
standard industry practices effectively
dismantles the systems approach,
making the following steps in the
systems approach less effective. To
address this concern, the commenter
suggested we explain that the standard
industry practices outlined in the PRA
remain in place for bananas from the
Philippines and that we edit the RMD to
reflect this clarification.
APHIS does not require industry
standard practices that are not
technically and scientifically justified as
a way to prevent or remove pests.
APHIS omitted certain standard
industry practices from the
requirements in the RMD because those
practices are designed to produce
marketable fruit rather than to remove
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plant pests. Although we are not
requiring those practices, they are
routinely conducted in the Philippines.
One commenter pointed out that the
references used for the PRA did not
include more recent publications
important for analyzing the potential for
establishment of Bactrocera musae
(banana fruit fly) in Hawaii. The
commenter cited one publication in
particular which indicated that banana
fruit fly may oviposit in bananas earlier
than the mature green stage,
necessitating mitigations earlier than is
common practice, and that they may
demonstrate varietal host preferences.
Although we recognize the
commenter’s concern, our pest
interception data does not indicate a
higher risk of Bactrocera spp. fruit fly
infestations in bananas than Anastrepha
spp. fruit fly infestations. In addition,
according to highly regarded scientific
sources referenced in the PRA, the
banana fruit fly is not present in the
Philippines. However, as an additional
precaution, the fruit is required to be
bagged as soon as the blossom falls,
while the fruit is still very small. The
banana will remain in the pesticideimpregnated bag for months until
harvest. Therefore, it is very unlikely
that the banana will be subject to fruit
fly infestation during the growing
season. APHIS will also require
sampling and fruit cutting to ensure the
efficacy of the systems approach.
One commenter referred to table 6 in
the PRA and asked whether the column
header ‘‘Quarantine pest’’ refers to
whether or not Hawaii and the U.S.
territories consider the listed pest a
State quarantine pest. If so, the
commenter stated that APHIS should
check the responses with respect to
Hawaii to ensure accuracy.
The PRA was drafted with respect to
pest status in Hawaii and the U.S.
territories. Therefore, the quarantine
pests referred to are those that are
considered quarantine pests with
respect to those States.
Fruit Fly Mitigations
One commenter opposed the
importation of hard green bananas from
the Philippines, testifying to the
occurrence of fruit fly attacks on hard
green bananas in the aftermath of a
typhoon. Due to the frequency of
typhoon activity in the Philippines, the
commenter expressed concern that the
risk of introducing fruit flies into
Hawaii and the U.S. territories increases
with the importation of bananas from
the Philippines even when the bananas
have been harvested at the hard green
stage.
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Under paragraph (b) of § 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. 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. Bananas will be inspected at the
port of entry to verify that they are at the
proper stage of ripeness. 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. However,
two additional mitigations (fruit fly
trapping and population control) were
added specifically for the Philippine
bananas program to address fruit fly
risk. If a typhoon were to occur during
the growing season, the likelihood is
that the bags required to be placed over
the fruit would not stay in place. This
would disqualify such fruit from
importation into the United States as it
would no longer have been produced in
accordance with the systems approach.
In addition, even if fruit flies were to
infest the fruit and the fruit were not
immediately culled, the NPPO would
cull such fruit during inspection due to
the visible damage done by fruit fly
feeding. Finally, as mentioned
previously, APHIS requires sampling
and cutting of fruit to detect pests in
shipments. These measures provide an
added measure of protection against the
introduction and establishment of fruit
flies.
Two commenters expressed concern
that APHIS would stop requiring fruit
fly trapping after 2 years of inspections
with no interception of fruit fly larvae.
One commenter asked how APHIS
would monitor changes in the fruit fly
population in the Philippines if we no
longer required trapping. The second
commenter stated that 2 years of
trapping data are not representative of
future fruit fly populations when
pesticide applications are not
standardized between production areas
and when production areas and the
varieties of bananas they grow may
change as well. The commenter further
suggested using the bait sprays as a way
for areas that do not have low
prevalence for fruit flies to attain low
prevalence or requiring importation
only from pest free areas.
As stated in the proposed rule, we do
not want to impose trapping
requirements if they are not justified by
the presence of fruit fly larvae in
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Philippine bananas. This is in
accordance with IPPC standards, which
require that phytosanitary measures
represent the least restrictive measures
available and result in the minimum
impediment to the international
movement of people, commodities, and
conveyances. Bananas are poor hosts of
fruit flies, especially when harvested
green. In addition, we have never
intercepted fruit flies in shipments of
commercial bananas from Central or
South America where the same systems
approach is in place. Although
Bactrocera spp. fruit flies have been
intercepted in bananas found in
passenger baggage, these interceptions
were very rare and they did not
originate from the Philippines. The only
fruit fly known to infest green bananas
is the banana fruit fly, which as stated
previously, is not present in the
Philippines. APHIS does not require
fruit fly trapping for bananas from
Central or South America and we are
requiring trapping for 2 years within the
Philippines only as an abundance of
caution. The primary mitigation
methods are the poor host status of
green bananas and the pesticideimpregnated bagging. Therefore, we do
not believe it is necessary to continue to
require fruit fly trapping in the absence
of fruit fly larvae after 2 years. If fruit
flies are discovered during sampling of
commercial fruit, the export program
will be suspended and trapping or
other, equivalent measures, may be
reinstated.
One commenter stated that, because
of the prevalence of fruit fly species in
Hawaii, the banana fruit fly could
remain undetected there when it would
likely be easily detected and eradicated
in the continental United States.
While it is the case that a number of
fruit fly species are present in Hawaii,
this is not a sound scientific and
technical justification for requiring
permanent fruit fly trapping in the
Philippines. In the proposed rule, we
proposed to require the NPPO of the
Philippines to monitor the bananas for
pests, and if we have any problems in
the first 2 years of the program, we may
consider extending the trapping
requirement.
Bagging Requirements
In the proposed rule, we proposed
that each place of production would
have to follow a pest management
program specified by the NPPO of the
Philippines to reduce populations of
quarantine pests. This management
program would include applying
pesticides to reduce pest populations
and bagging bananas after flower drop
with plastic bags impregnated with
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16:20 Oct 09, 2014
Jkt 235001
pesticides. One commenter stated that
the time between flower removal and
bagging may vary with different banana
varieties, which may allow for longer
exposure times to the banana fruit fly
for varieties that may be preferred hosts
of the banana fruit fly. The commenter
also asked whether bagging is done for
all banana varieties when the
inflorescence is at the bending stage,
which is included in the planned
mitigations for Bugtok and Moko banana
varieties per the PRA.
Because the growing period of
commercial bananas is longer than the
life cycle of fruit flies within the
Philippines, in the unlikely event that
fruit are bagged after fruit fly infestation,
larvae would have emerged prior to
harvest. The presence of fruit flies in the
bags along with larval emergence holes
would disqualify such bananas from
importation.
Post-harvest Processing
Citing pest interception data, one
commenter stated that the cleaning
process to remove surface pests has not
been effective in bananas from Central
and South America. The commenter
indicated that this may be a particular
problem with pests that are known
disease vectors. The commenter
suggested that utilizing standard
industry practices within the
Philippines, such as using aluminum
sulfate, may be more effective as a
mitigation.
We disagree with the commenter that
the cleaning process to prevent surface
pests has been ineffective. The number
of pests intercepted in shipments of
bananas from Central and South
America has been very low given the
volume of imported bananas from those
areas. If, however, we find that a
significant number of surface pests are
arriving on bananas from the
Philippines, we will either suspend the
import program or amend the required
mitigation measures to address the
issue.
Phytosanitary Certificate
One commenter stated that
phytosanitary certificates from the
Philippines are not effective in
preventing the introduction of foreign
pests and diseases because fake
phytosanitary certificates can be easily
purchased in Manila.
The Philippines is a signatory to the
IPPC, like the United States. As a
signatory to the IPPC, one of the
Philippines’ responsibilities is to issue
phytosanitary certificates with accurate
and complete information. We have no
reason to doubt that the Philippines will
do this.
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
Economic Analysis
Two commenters objected to the
number of unknowns in the economic
analysis of the proposed rule, including
the volume of bananas to be imported.
The commenters stated that, unlike the
continental United States, Hawaii in
particular is a large producer of
bananas. Therefore, the proposed rule
could have unforeseen economic
impacts on Hawaiian growers.
The information contained in the
economic analysis was based on the best
information available. As stated
previously, APHIS does not have the
authority to restrict imports solely on
the grounds of potential economic
effects on domestic entities that could
result from increased imports. Current
Hawaiian banana production provides
considerable banana supply to the
Hawaiian market, however it is
apparently not enough to satisfy the
demand for banana consumption in
Hawaii. Any impact of the rule on U.S.
banana producers in Hawaii and U.S.
territories is likely to be small. To the
extent that new imports of bananas from
the Philippines arrive in Hawaii and
U.S. territories, consumers will benefit
from this additional source of fresh
bananas. In addition, part of APHIS’
examination of the economic impact of
a regulation is to determine the
regulation’s net benefits and costs to
U.S. consumers as well as U.S.
producers.
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 5 U.S.C. 604, we
have performed a final regulatory
flexibility analysis, which is
summarized below, regarding the
economic effects of this rule on small
entities. 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.
Commercial production of bananas in
the United States takes place in Hawaii,
where most if not all of the banana
farms are small entities. Currently,
about 4.1 million metric tons (MT) of
bananas are imported into the United
States (including the State of Hawaii)
every year. In 2011, Hawaii’s banana
harvest totaled about 7,900 MT.
E:\FR\FM\10OCR1.SGM
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Federal Register / Vol. 79, No. 197 / Friday, October 10, 2014 / Rules and Regulations
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 the U.S. territories, or
the quantity and origin of bananas
already imported into these
destinations. However, Hawaii as well
as the U.S. territories, already import
bananas from other places since the
volume of banana consumption is
greater than their production. In general,
the quantity of U.S. imports from the
Philippines is expected to be relatively
insignificant, equivalent to about 0.05
percent of U.S. imports from other
countries. What percent would go to
Hawaii depends on the demand from
the consumers in the State of Hawaii
and in the other U.S. territories.
Consumers in Hawaii and the U.S.
territories would benefit from the
additional source of fresh bananas,
which are of similar quality as the
domestic ones.
mstockstill on DSK4VPTVN1PROD with RULES
Executive Order 12988
This final rule allows bananas to be
imported into Guam, Hawaii, and the
Northern Mariana Islands 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-bycase 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 environmental assessment (EA)
and finding of no significant impact
were prepared in 2012 for a final rule
for importation of bananas from the
Philippines into the continental United
States. The EA provided a basis for the
conclusion that the importation of
bananas from the Philippines into the
continental United States, under the
conditions specified in that rule, would
not have a significant impact on the
quality of the human environment.
APHIS reviewed the proposal to import
bananas from the Philippines into
Guam, Hawaii, and the Northern
Mariana Islands under the conditions
specified in this rule, and determined
that this will not have a significant
impact on the quality of the human
environment. APHIS prepared an
amended finding of no significant
impact, and the Administrator of the
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16:20 Oct 09, 2014
Jkt 235001
Animal and Plant Health Inspection
Service has determined that an
environmental impact statement need
not be prepared.
The 2012 EA and amended 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 amended finding of no
significant impact may be viewed on the
Regulations.gov Web site (see footnote
1). Copies of the EA and amended
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.
61221
recordkeeping requirements, Rice,
Vegetables.
Accordingly, we are amending 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
‘‘November 10, 2016’’ 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; and
■ d. In the OMB citation at the end of
the section, the words ‘‘number 0579–
0394’’ are removed and the words
‘‘numbers 0579–0394 and 0579–0415’’
are added in their place.
The revision reads as follows:
■
§ 319.56–58
Bananas from the Philippines.
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 0579–0415,
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.
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.
*
*
*
*
*
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 Ms. Kimberly
Hardy, APHIS’ Information Collection
Coordinator, at (301) 851–2727.
[FR Doc. 2014–24246 Filed 10–9–14; 8:45 am]
List of Subjects in 7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Logs,
Nursery stock, Plant diseases and pests,
Quarantine, Reporting and
ACTION:
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
Done in Washington, DC, this 6th day of
October 2014.
Kevin Shea,
Administrator, Animal and Plant Health
Inspection Service.
BILLING CODE 3410–34–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Docket No. SSA–2009–0038]
RIN 0960–AH03
Revised Medical Criteria for Evaluating
Genitourinary Disorders
Social Security Administration.
Final rules.
AGENCY:
These final rules revise the
criteria in the Listing of Impairments
(listings) that we use to evaluate cases
SUMMARY:
E:\FR\FM\10OCR1.SGM
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Agencies
[Federal Register Volume 79, Number 197 (Friday, October 10, 2014)]
[Rules and Regulations]
[Pages 61216-61221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24246]
[[Page 61216]]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2013-0045]
RIN 0579-AD82
Importation of Fresh Bananas From the Philippines Into Hawaii and
U.S. Territories
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending 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 will have to be produced in
accordance with a systems approach that includes 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 into Guam, Hawaii, and the Northern
Mariana Islands while continuing to protect against the introduction of
plant pests.
DATES: Effective November 10, 2014.
FOR FURTHER INFORMATION CONTACT: Mr. George Apgar Balady, Senior
Regulatory Policy Specialist, Regulatory Coordination and Compliance,
PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301)
851-2240.
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 the
United States from certain parts of the world to prevent the
introduction and dissemination of plant pests within the United States.
On January 28, 2014, we published in the Federal Register (79 FR
4410-4414, Docket No. APHIS-2013-0045) a proposal \1\ to amend the
regulations to allow the importation of bananas from the Philippines
into Guam, Hawaii, and the Northern Mariana Islands. We also prepared a
pest risk assessment (PRA) entitled ``Importation of Banana, Musa spp.,
as Fresh, Hard Green Fruit from the Philippines to Guam, Hawaii, and
the Northern Mariana Islands'' (January 2013). The PRA assesses the
risks associated with the importation of fresh bananas from the
Philippines into Guam, Hawaii, and the Northern Mariana Islands. Based
on the information contained in the PRA, we prepared a risk management
document (RMD) that recommends appropriate mitigation measures needed
beyond the port-of-entry inspection requirements.
---------------------------------------------------------------------------
\1\ To view the proposed rule, supporting documents, and the
comments we received, go to https://www.regulations.gov/#!docketDetail;D=APHIS-2013-0045.
---------------------------------------------------------------------------
Based on the recommendations of the RMD, we proposed to allow the
importation of bananas from the Philippines into Hawaii and U.S.
Territories only if they were produced in accordance with a systems
approach. The systems approach we proposed included requirements for:
Registration, monitoring, and oversight of places of
production;
Trapping for the fruit flies Bactrocera spp. 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 national plant protection organization
(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. These are the same
conditions under which bananas from the Philippines were already
authorized for importation into the continental United States.
We solicited comments on the proposed rule for 60 days ending March
31, 2014. We received 46 comments from private citizens by the close of
the comment period. Three of the commenters supported the proposed
rule. The issues raised by the other commenters are discussed below by
topic.
General Comments
The majority of commenters stated that the Animal and Plant Health
Inspection Service (APHIS) should prohibit the importation of bananas
from other countries into Hawaii and U.S. territories, as locally grown
bananas are plentiful or because importing commodities from other
countries would conflict with local food initiatives. Many commenters
expressed concerns that the importation of lower-priced bananas from
other countries would make it more difficult for local producers to
compete within the market. Several commenters objected to using tax
dollars to implement and enforce the proposed regulations rather than
using them to support local growers.
Such prohibitions would be beyond the scope of APHIS' statutory
authority under the Plant Protection Act (7 U.S.C. 7701 et seq.,
referred to below as the PPA). Under the PPA, APHIS may prohibit the
importation of a fruit or vegetable into the United States only if we
determine that the prohibition is necessary in order to prevent the
introduction or dissemination of a plant pest or noxious weed within
the United States. APHIS does not have the authority to restrict
imports solely on the grounds of potential economic effects on domestic
entities that could result from increased imports. Current Hawaiian
banana production provides considerable banana supply to the Hawaiian
market, however it is apparently not enough to satisfy the demand for
banana consumption in Hawaii. Any impact of the rule on U.S. banana
producers in Hawaii and U.S. territories is likely to be small. To the
extent that new imports of bananas from the Philippines arrive in
Hawaii and U.S. territories, consumers will benefit from this
additional source of fresh bananas. In addition, the importation of
Philippine bananas is expected to add jobs in the produce shipping and
marketing industry within Hawaii and the Territories, which would help
offset any potential losses. Tax dollars would not be used to support
the proposed regulations. The importation of Philippine bananas would
require the NPPO of the Philippines to enter into a trust fund
agreement with APHIS. Under the trust fund agreement, the NPPO of the
Philippines would be required to pay in advance all estimated costs
that APHIS expects to incur in providing inspection services in the
exporting country. This includes administrative expenses such as
inspector salaries and travel expenses. The cost of inspecting
shipments at U.S.
[[Page 61217]]
ports of entry is recovered through user fees.
Additionally, as a signatory to the World Trade Organization
Agreement on Sanitary and Phytosanitary Measures, the United States has
agreed that any prohibitions it places on the importation of fruits and
vegetables will be based on scientific evidence, and will not be
maintained without sufficient scientific evidence. The blanket
prohibitions requested by the commenters would not be in keeping with
this agreement.
One commenter suggested that we should allow bananas from the
Philippines to be imported into Alaska, where there is no local
production, rather than importing bananas into Hawaii and the U.S.
territories.
Under Sec. 319.56-58, bananas from the Philippines are already
allowed into the continental United States, including Alaska.
One commenter expressed frustration that bananas grown in Hawaii
could not be exported, while bananas grown in other countries could be
imported into Hawaii.
APHIS has an export staff to aid growers in exporting their
agricultural commodities to other countries. Contact information for
this staff is available on the APHIS Web site at https://www.aphis.usda.gov/ under the Plant Health tab.
Monitoring and Oversight
Under paragraph (b)(3), the NPPO of the Philippines would be
required 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. One commenter pointed out that the International Plant
Protection Convention (IPPC) requires that records be retained for at
least the 2 previous years or as long as necessary to support the
export program from areas of low pest prevalence.
Requiring the NPPO of the Philippines to retain records for 1 year
is consistent with our recordkeeping requirements for all offshore
phytosanitary mitigation programs. From past experience, retaining
records for longer than 1 year has provided little value in traceback
efforts as any issues that may occur are generally related to the
current growing season. While we do not require NPPO's to retain
records for longer than 1 year, this does not pertain to APHIS pest
interception records. Those records are maintained for the life of the
export program.
One commenter stated that certain growers may import bananas from
smaller growers to meet consumer demand and suggested that production
areas be canvassed and shipments inspected to ensure that bananas not
of approved varieties or stage of maturity are prohibited importation.
Just one interception of a target pest would be enough to cause
APHIS to suspend a commercial import program until APHIS and the
Philippine NPPO agree that the pest eradication measures taken have
been effective and that the pest risk has been eliminated. Because
bananas from non-registered places of production present a greater pest
risk than does fruit grown in registered places of production, we
believe that it is unlikely that the growers and packers in a
registered place of production would allow their entire export
operation to be jeopardized by allowing potentially infested fruit from
non-registered places of production to be commingled with their export-
quality fruit. In addition to that purely economic disincentive, APHIS
and Philippine NPPO inspectors will also be present in the places of
production and packinghouses during the shipping season to ensure that
all requirements of the regulations are being observed. That includes
ensuring that only green bananas are packed for export. There are no
restrictions on the variety of bananas that can be imported from the
Philippines under the regulations.
The commenter also suggested that shipments from noncompliant
production areas be restricted until the production areas are
determined to be in compliance with the regulations per the NPPO and
APHIS, and that records be kept regarding banana varieties and stage of
maturity.
The NPPO of the Philippines would be responsible for enforcing the
requirements in the operational workplan, including maintaining records
of growers and packers and periodically conducting inspections or
audits to ensure that growers are producing bananas in accordance with
the systems approach. 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.
Inspection
The majority of commenters expressed concern regarding the
potential for Philippine bananas to act as a pathway for the
introduction of insect pests and diseases into Hawaii and the U.S.
territories.
Two commenters expressed concern about the ability to detect
diseases in their incubation period and control them following
establishment.
APHIS has seldom intercepted pests on commercial bananas when
produced under a systems approach including bagging bananas after
flower drop with plastic bags impregnated with pesticides and harvest
of green bananas. Therefore, based on this track record, we are
confident the NPPO of the Philippines can effectively oversee the
application of the proposed systems approach to importing Philippine
bananas to Guam, Hawaii, and the Northern Mariana Islands. We evaluated
the potential for diseases to follow the pathway of bananas from the
Philippines into Hawaii and the U.S. territories in our PRA and
determined that the only disease of concern that could follow that
pathway is Ralstonia solanacearum. However, based on the requirements
of the proposed systems approach, such as bagging the inflorescence at
the bending stage, which prevents access to the fruit by disease
vectors, and standard industry procedures such as disinfecting tools,
we determined that bananas from the Philippines are not likely to
present a risk of introducing R. solanacearum to Hawaii and the U.S.
territories. In addition, APHIS has no record of any interceptions of
R. solanacearum on banana imports from any country. Therefore, because
diseases are not likely to follow the pathway of bananas, the potential
latency of disease symptoms is not an issue.
Several commenters expressed concern that Hawaii and the U.S.
territories do not have the resources necessary to implement and
enforce the proposed regulations, which would increase the risk of
accidental or incidental introduction of quarantine pests and diseases.
As stated previously, any required oversight by APHIS in the
Philippines will be paid for using monetary support from the industry
through establishment of a trust fund. Inspection at the port of
arrival will be conducted by APHIS employees in conjunction with
Customs and Border Protection, and will be funded by user fees. Hawaii
and the U.S. territories will not have any implementation or
enforcement responsibilities for the proposed regulations.
Several commenters called for increased inspections of bananas from
the Philippines to mitigate pest risk. One commenter stated that,
because the PRA identified five times the number of
[[Page 61218]]
significant quarantine pests for Guam, Hawaii, and the Northern Mariana
Islands than were identified in the PRA prepared for the mainland
United States, the proposed systems approach should require a stricter
inspection process. However, the commenter did not elaborate on what
aspect of the inspection process could be improved. One commenter
stated that large inspection fees should be charged for imports,
including banana imports, in order to prevent the importation of pests
and diseases.
As stated previously, APHIS seldom intercepts pests on commercially
produced bananas produced under the proposed systems approach.
Therefore, APHIS considers the multiple layers of safeguards sufficient
to mitigate the risk posed by the quarantine pests listed in the PRA.
These mitigations are based on those currently used in Central and
South America for export of bananas to the United States. User fees are
charged commensurate with the cost of inspecting imports. We are unable
to charge more for inspecting specific goods from certain countries.
One commenter asked why we do not have a set sampling rate
established in Sec. 319.56-58(h)(2). The commenter expressed concern
that, in the absence of a current sampling rate, monitoring of the
procedures required of the Philippine NPPO by APHIS will be
insufficient.
Rather than establishing a sampling rate within the regulations,
APHIS has determined that setting a sampling rate within the
operational workplan provides greater flexibility in the event that the
sampling rate must be changed in the future. For most imported fruit,
our sampling regime is designed to detect pest infestations if the pest
is present in more than 1 or 2 percent of sampled fruit. This
corresponds to sampling 150 to 300 fruit.
PRA and RMD
One commenter expressed concern that varieties of banana from the
Philippines would be imported for which no risk analysis has been
conducted or risk mitigations determined due to lack of published data.
The PRA considered the risks associated with the importation of all
banana varieties.
Several commenters noted that the PRA does not assess the risk that
quarantine pests may pose to endangered banana or other species found
within Hawaii.
The PRA found that no pests were likely to follow the pathway of
mature green bananas because the stage of maturity at harvest and
several other standard production and post-harvest practices, as
detailed in the PRA, were determined to be adequate mitigations.
Because no pests were likely to follow the pathway, no further analysis
was conducted.
Several commenters referenced pests that have become established in
Hawaii or the U.S. territories as a result of the importation of
commodities. In the RMD, we stated that between 3.8 and 4 million
metric tons of bananas were imported into the United States from
Central and South America each year between 2003 and 2007, however,
only 1,400 actionable quarantine pests were intercepted on imported
bananas in that time period. One commenter stated that citing the small
number of pest interceptions on bananas from Central and South America
versus the volume of shipments is misleading given that the number of
pests that remained undetected would be correspondingly larger for
larger shipments.
Most pest interceptions, specifically fruit fly, occur in fruit
seized in passenger baggage rather than in commercial imports. Fruit in
passenger baggage will continue to be prohibited under this rule. While
the commenter may be correct that larger shipments could potentially
contain larger numbers of undetected quarantine pests, just one
interception of a target pest in a commercial shipment would be enough
to cause APHIS to suspend a commercial import program. This was the
case for the suspension of the Spanish clementine import program when a
very small number of live Mediterranean fruit fly (Ceratitis capitata)
larvae were discovered in a shipment. Importations of clementine from
Spain did not resume until a review was conducted and pest mitigations
strengthened. Therefore, we consider the multiple layers of safeguards
in the proposed rule sufficient to mitigate the risk posed by the
quarantine pests listed in the PRA.
One commenter stated that all bananas grown in production areas
should be produced from tissue culture in order to deter disease and
asked whether this is currently the case in the Philippines. The
commenter further stated that, since tissue culture for specialty
bananas may not be available, those banana varieties may need to be
restricted from importation until tissue culture is viable.
The Philippines has indicated that producing bananas using tissue
culture is part of their standard industry practices.
The PRA lists Imperata cylindrica L. as a Federal noxious weed
present in the Philippines, but that is not likely to follow the
pathway of Philippine bananas due to production procedures and post-
harvest processing requirements, such as bagging of bananas during the
growing season and the use of high-pressure water sprays. One commenter
stated that these measures are insufficient to prevent introduction of
the weed to Hawaii and suggested that bananas grown in fields near I.
cylindrica L. be inspected and safeguarded from contamination with I.
cylindrica L. seeds.
Paragraph (b)(1) requires that the Philippine NPPO conduct
inspections of places of production beginning 3 months before harvest
and throughout the shipping season to ensure compliance with the
regulations. In addition, APHIS may also conduct inspections of
production areas as necessary to ensure compliance. This inspection
regimen coupled with the use of bagging and high-pressure water sprays
makes it highly unlikely that seeds of I. cylindrical L. could
contaminate shipments of Philippine bananas. Therefore, the PRA
concluded the weed was highly unlikely to follow the pathway.
One commenter raised concerns about the chemicals used in the
Philippines to treat bananas in the field. The commenter stated that
these chemicals are illegal in the United States and questioned whether
the field inspectors in the Philippines would actually test the bananas
for disease and pesticide residues prior to exportation. A second
commenter raised concerns about the quality of life of Filipino field
workers and suggested revisions to the proposed systems approach to
ensure their safety and wellbeing, particularly when handling harmful
pesticides.
While the United States does not have direct control over
pesticides that are used on food commodities such as bananas in other
countries, there are regulations in the United States concerning the
importation of food to ensure that commodities do not enter the United
States containing illegal pesticide residues. Through section 408 of
the Federal Food, Drug, and Cosmetic Act, the Environmental Protection
Agency (EPA) has the authority to establish, change, or cancel
tolerances for food commodities. These EPA-set tolerances are the
maximum levels of pesticide residues that have been determined, through
comprehensive safety evaluations, to be safe for human consumption.
Tolerances apply to both food commodities that are grown in the United
States and food commodities that are grown in other countries and
imported into the United States. The
[[Page 61219]]
EPA tolerance levels are enforced once the commodity enters the United
States. Chemicals such as DDT that are banned in the United States do
not have tolerances on food commodities. Federal Government food
inspectors are responsible for monitoring food commodities that enter
the United States to confirm that tolerance levels are not exceeded and
that residues of pesticide chemicals that are banned in the United
States are not present on the commodities. Tolerance levels for all
chemicals that are acceptable for use on bananas may be found in EPA's
regulations in 40 CFR 180.101 through 180.2020. Tolerance information
can also be obtained at https://www.epa.gov/pesticides/food/viewtols.htm. Pesticide use in the Philippines is regulated through the
Fertilizer and Pesticide Authority (FPA). Under this authority, all
pesticides are required to be registered and all pesticide handlers
must be licensed. In addition, the FPA restricts or bans the use of any
pesticide when evidence shows that the pesticide is an imminent hazard
to crops, fish, livestock, the environment, or public health.
One commenter stated that repeated use of pesticides and bait
sprays may increase pest resistance and that the operational workplan
must include a requirement to review the long-term efficacy of
pesticides.
APHIS uses information based on studies conducted by the EPA to
determine the appropriate chemical and dosage requirements for use
against quarantine pests. It is outside the scope of APHIS' mission to
review pesticide resistance.
One commenter pointed out inconsistencies between the PRA and RMD
and expressed concern regarding the omission of certain standard
industry practices from the requirements in the RMD. The commenter
stated that removing standard industry practices effectively dismantles
the systems approach, making the following steps in the systems
approach less effective. To address this concern, the commenter
suggested we explain that the standard industry practices outlined in
the PRA remain in place for bananas from the Philippines and that we
edit the RMD to reflect this clarification.
APHIS does not require industry standard practices that are not
technically and scientifically justified as a way to prevent or remove
pests. APHIS omitted certain standard industry practices from the
requirements in the RMD because those practices are designed to produce
marketable fruit rather than to remove plant pests. Although we are not
requiring those practices, they are routinely conducted in the
Philippines.
One commenter pointed out that the references used for the PRA did
not include more recent publications important for analyzing the
potential for establishment of Bactrocera musae (banana fruit fly) in
Hawaii. The commenter cited one publication in particular which
indicated that banana fruit fly may oviposit in bananas earlier than
the mature green stage, necessitating mitigations earlier than is
common practice, and that they may demonstrate varietal host
preferences.
Although we recognize the commenter's concern, our pest
interception data does not indicate a higher risk of Bactrocera spp.
fruit fly infestations in bananas than Anastrepha spp. fruit fly
infestations. In addition, according to highly regarded scientific
sources referenced in the PRA, the banana fruit fly is not present in
the Philippines. However, as an additional precaution, the fruit is
required to be bagged as soon as the blossom falls, while the fruit is
still very small. The banana will remain in the pesticide-impregnated
bag for months until harvest. Therefore, it is very unlikely that the
banana will be subject to fruit fly infestation during the growing
season. APHIS will also require sampling and fruit cutting to ensure
the efficacy of the systems approach.
One commenter referred to table 6 in the PRA and asked whether the
column header ``Quarantine pest'' refers to whether or not Hawaii and
the U.S. territories consider the listed pest a State quarantine pest.
If so, the commenter stated that APHIS should check the responses with
respect to Hawaii to ensure accuracy.
The PRA was drafted with respect to pest status in Hawaii and the
U.S. territories. Therefore, the quarantine pests referred to are those
that are considered quarantine pests with respect to those States.
Fruit Fly Mitigations
One commenter opposed the importation of hard green bananas from
the Philippines, testifying to the occurrence of fruit fly attacks on
hard green bananas in the aftermath of a typhoon. Due to the frequency
of typhoon activity in the Philippines, the commenter expressed concern
that the risk of introducing fruit flies into Hawaii and the U.S.
territories increases with the importation of bananas from the
Philippines even when the bananas have been harvested at the hard green
stage.
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. 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. Bananas will be inspected at the port of entry to verify that
they are at the proper stage of ripeness. 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. However, two additional mitigations (fruit fly trapping and
population control) were added specifically for the Philippine bananas
program to address fruit fly risk. If a typhoon were to occur during
the growing season, the likelihood is that the bags required to be
placed over the fruit would not stay in place. This would disqualify
such fruit from importation into the United States as it would no
longer have been produced in accordance with the systems approach. In
addition, even if fruit flies were to infest the fruit and the fruit
were not immediately culled, the NPPO would cull such fruit during
inspection due to the visible damage done by fruit fly feeding.
Finally, as mentioned previously, APHIS requires sampling and cutting
of fruit to detect pests in shipments. These measures provide an added
measure of protection against the introduction and establishment of
fruit flies.
Two commenters expressed concern that APHIS would stop requiring
fruit fly trapping after 2 years of inspections with no interception of
fruit fly larvae. One commenter asked how APHIS would monitor changes
in the fruit fly population in the Philippines if we no longer required
trapping. The second commenter stated that 2 years of trapping data are
not representative of future fruit fly populations when pesticide
applications are not standardized between production areas and when
production areas and the varieties of bananas they grow may change as
well. The commenter further suggested using the bait sprays as a way
for areas that do not have low prevalence for fruit flies to attain low
prevalence or requiring importation only from pest free areas.
As stated in the proposed rule, we do not want to impose trapping
requirements if they are not justified by the presence of fruit fly
larvae in
[[Page 61220]]
Philippine bananas. This is in accordance with IPPC standards, which
require that phytosanitary measures represent the least restrictive
measures available and result in the minimum impediment to the
international movement of people, commodities, and conveyances. Bananas
are poor hosts of fruit flies, especially when harvested green. In
addition, we have never intercepted fruit flies in shipments of
commercial bananas from Central or South America where the same systems
approach is in place. Although Bactrocera spp. fruit flies have been
intercepted in bananas found in passenger baggage, these interceptions
were very rare and they did not originate from the Philippines. The
only fruit fly known to infest green bananas is the banana fruit fly,
which as stated previously, is not present in the Philippines. APHIS
does not require fruit fly trapping for bananas from Central or South
America and we are requiring trapping for 2 years within the
Philippines only as an abundance of caution. The primary mitigation
methods are the poor host status of green bananas and the pesticide-
impregnated bagging. Therefore, we do not believe it is necessary to
continue to require fruit fly trapping in the absence of fruit fly
larvae after 2 years. If fruit flies are discovered during sampling of
commercial fruit, the export program will be suspended and trapping or
other, equivalent measures, may be reinstated.
One commenter stated that, because of the prevalence of fruit fly
species in Hawaii, the banana fruit fly could remain undetected there
when it would likely be easily detected and eradicated in the
continental United States.
While it is the case that a number of fruit fly species are present
in Hawaii, this is not a sound scientific and technical justification
for requiring permanent fruit fly trapping in the Philippines. In the
proposed rule, we proposed to require the NPPO of the Philippines to
monitor the bananas for pests, and if we have any problems in the first
2 years of the program, we may consider extending the trapping
requirement.
Bagging Requirements
In the proposed rule, we proposed that each place of production
would have to follow a pest management program specified by the NPPO of
the Philippines to reduce populations of quarantine pests. This
management program would include applying pesticides to reduce pest
populations and bagging bananas after flower drop with plastic bags
impregnated with pesticides. One commenter stated that the time between
flower removal and bagging may vary with different banana varieties,
which may allow for longer exposure times to the banana fruit fly for
varieties that may be preferred hosts of the banana fruit fly. The
commenter also asked whether bagging is done for all banana varieties
when the inflorescence is at the bending stage, which is included in
the planned mitigations for Bugtok and Moko banana varieties per the
PRA.
Because the growing period of commercial bananas is longer than the
life cycle of fruit flies within the Philippines, in the unlikely event
that fruit are bagged after fruit fly infestation, larvae would have
emerged prior to harvest. The presence of fruit flies in the bags along
with larval emergence holes would disqualify such bananas from
importation.
Post-harvest Processing
Citing pest interception data, one commenter stated that the
cleaning process to remove surface pests has not been effective in
bananas from Central and South America. The commenter indicated that
this may be a particular problem with pests that are known disease
vectors. The commenter suggested that utilizing standard industry
practices within the Philippines, such as using aluminum sulfate, may
be more effective as a mitigation.
We disagree with the commenter that the cleaning process to prevent
surface pests has been ineffective. The number of pests intercepted in
shipments of bananas from Central and South America has been very low
given the volume of imported bananas from those areas. If, however, we
find that a significant number of surface pests are arriving on bananas
from the Philippines, we will either suspend the import program or
amend the required mitigation measures to address the issue.
Phytosanitary Certificate
One commenter stated that phytosanitary certificates from the
Philippines are not effective in preventing the introduction of foreign
pests and diseases because fake phytosanitary certificates can be
easily purchased in Manila.
The Philippines is a signatory to the IPPC, like the United States.
As a signatory to the IPPC, one of the Philippines' responsibilities is
to issue phytosanitary certificates with accurate and complete
information. We have no reason to doubt that the Philippines will do
this.
Economic Analysis
Two commenters objected to the number of unknowns in the economic
analysis of the proposed rule, including the volume of bananas to be
imported. The commenters stated that, unlike the continental United
States, Hawaii in particular is a large producer of bananas. Therefore,
the proposed rule could have unforeseen economic impacts on Hawaiian
growers.
The information contained in the economic analysis was based on the
best information available. As stated previously, APHIS does not have
the authority to restrict imports solely on the grounds of potential
economic effects on domestic entities that could result from increased
imports. Current Hawaiian banana production provides considerable
banana supply to the Hawaiian market, however it is apparently not
enough to satisfy the demand for banana consumption in Hawaii. Any
impact of the rule on U.S. banana producers in Hawaii and U.S.
territories is likely to be small. To the extent that new imports of
bananas from the Philippines arrive in Hawaii and U.S. territories,
consumers will benefit from this additional source of fresh bananas. In
addition, part of APHIS' examination of the economic impact of a
regulation is to determine the regulation's net benefits and costs to
U.S. consumers as well as U.S. producers.
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 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this rule on small entities. 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.
Commercial production of bananas in the United States takes place
in Hawaii, where most if not all of the banana farms are small
entities. Currently, about 4.1 million metric tons (MT) of bananas are
imported into the United States (including the State of Hawaii) every
year. In 2011, Hawaii's banana harvest totaled about 7,900 MT.
[[Page 61221]]
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 the
U.S. territories, or the quantity and origin of bananas already
imported into these destinations. However, Hawaii as well as the U.S.
territories, already import bananas from other places since the volume
of banana consumption is greater than their production. In general, the
quantity of U.S. imports from the Philippines is expected to be
relatively insignificant, equivalent to about 0.05 percent of U.S.
imports from other countries. What percent would go to Hawaii depends
on the demand from the consumers in the State of Hawaii and in the
other U.S. territories. Consumers in Hawaii and the U.S. territories
would benefit from the additional source of fresh bananas, which are of
similar quality as the domestic ones.
Executive Order 12988
This final rule allows bananas to be imported into Guam, Hawaii,
and the Northern Mariana Islands 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 environmental assessment (EA) and finding of no significant
impact were prepared in 2012 for a final rule for importation of
bananas from the Philippines into the continental United States. The EA
provided a basis for the conclusion that the importation of bananas
from the Philippines into the continental United States, under the
conditions specified in that rule, would not have a significant impact
on the quality of the human environment. APHIS reviewed the proposal to
import bananas from the Philippines into Guam, Hawaii, and the Northern
Mariana Islands under the conditions specified in this rule, and
determined that this will not have a significant impact on the quality
of the human environment. APHIS prepared an amended finding of no
significant impact, and the Administrator of the Animal and Plant
Health Inspection Service has determined that an environmental impact
statement need not be prepared.
The 2012 EA and amended 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 amended finding of no significant impact may be viewed
on the Regulations.gov Web site (see footnote 1). Copies of the EA and
amended 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.
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 0579-0415, 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 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 319.56-58 is amended as follows:
0
a. The introductory text is revised;
0
b. In paragraph (c), the date ``February 9, 2015'' is removed and the
date ``November 10, 2016'' is added in its place;
0
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; and
0
d. In the OMB citation at the end of the section, the words ``number
0579-0394'' are removed and the words ``numbers 0579-0394 and 0579-
0415'' are added in their place.
The revision reads 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, Guam, Hawaii, and the Northern Mariana Islands from the
Philippines only under the conditions described in this section.
* * * * *
Done in Washington, DC, this 6th day of October 2014.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2014-24246 Filed 10-9-14; 8:45 am]
BILLING CODE 3410-34-P