[Federal Register Volume 71, Number 24 (Monday, February 6, 2006)]
[Proposed Rules]
[Pages 6011-6016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1553]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 71, No. 24 / Monday, February 6, 2006 / 
Proposed Rules  

[[Page 6011]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2006-0009]


Importation of Tomatoes From Certain Central American Countries

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations governing the 
importation of fruits and vegetables in order to allow pink and red 
tomatoes grown in approved registered production sites in Costa Rica, 
El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported 
into the United States without treatment. The conditions to which the 
proposed importation of tomatoes would be subject, including trapping, 
pre-harvest inspection, and shipping procedures, are designed to 
prevent the introduction of quarantine pests into the United States. 
This action would allow for the importation of pink and red tomatoes 
from those countries in Central America while continuing to provide 
protection against the introduction of quarantine pests into the United 
States.

DATES: We will consider all comments that we receive on or before April 
7, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the ``Search for Open Regulations'' box, 
select ``Animal and Plant Health Inspection Service'' from the agency 
drop-down menu, then click on ``Submit.'' In the Docket ID column, 
select APHIS-2006-0009 to submit or view public comments and to view 
supporting and related materials available electronically. After the 
close of the comment period, the docket can be viewed using the 
``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2006-0009, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2006-0009.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import 
Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 
River Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

    The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR 319.56 
though 319.56-8, 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.
    Section 319.56-2dd of the regulations contains administrative 
instructions allowing the importation of tomatoes from various 
countries where the Mediterranean fruit fly (Medfly, Ceratitis 
capitata) is present. In this document, we are proposing to amend that 
section by adding a new paragraph (f) that would set forth 
administrative instructions concerning the importation of pink and red 
tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, 
and Panama.
    In a decision sheet \1\ dated December 28, 1934, we authorized the 
importation of tomatoes from Central America and Mexico. However, in a 
subsequent set of decision sheets dated April 15, 1982, and January 27, 
1983, we identified red tomatoes from Ecuador, Costa Rica, and Panama 
as an occasional Medfly host. Given the similar pest situations in the 
other Central American countries, we changed the conditions of the 
permits issued for Central American tomatoes to allow only green 
tomatoes to be imported, since they are not a Medfly host. Pink 
tomatoes were prohibited in order to reduce confusion between pink and 
red tomatoes during port-of-entry inspections.
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    \1\ Before we routinely prepared pest risk assessments according 
to the guidelines provided by the Food and Agriculture Organization 
and the North American Plant Protection Organization we prepared 
decision sheets. Decision sheets contain relatively the same 
information that is contained in modern pest risk assessments, but 
without the standardized format.
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    The Government of El Salvador has requested the reauthorization of 
the importation of pink and red tomatoes from that country. In 
response, the Animal and Plant Health Inspection Service (APHIS) 
developed a systems approach, described below, under which tomatoes 
could be imported into the United States without treatment. We have 
determined that the systems approach could also be used by producers 
throughout Costa Rica, Guatemala, Honduras, Nicaragua, and Panama 
because of the similar pest risks present in these countries. 
Therefore, we are proposing to allow tomatoes to be imported into the 
United States from those six Central American countries under 
conditions very similar to current requirements for importing tomatoes 
from France, Morocco and Western Sahara, and Spain. Currently, tomatoes 
are being shipped from over 200 greenhouses in Europe using this 
systems approach. Since the start of the tomato systems approach in 
France and Spain, the number of pest interceptions has been very low, 
with an approximate shipment infestation rate of 0.005 percent in Spain 
and 0.06 percent in France.
    We have prepared a document in which we examine the risks of 
importing tomatoes from the six Central America countries that was 
based on an examination of relevant information (e.g., pest risk 
assessments, decisions

[[Page 6012]]

sheets, pest interception data, etc.) regarding this commodity. The 
document may be viewed on the Regulations.gov Web site (see ADDRESSES 
above for instructions for accessing Regulations.gov) or on the APHIS 
Web site at http://www.aphis.usda.gov/ppq/pra/draft/. The quarantine 
pests of concern in Costa Rica, El Salvador, Guatemala, Honduras, 
Nicaragua, and Panama, as identified in the document prepared for this 
proposed rule, are Medfly, the tomato fruit borer (Neoleucinodes 
elegantalis), the pea leafminer (Liriomyza huidobrensis), and the 
potato spindle tuber viroid.
    With the exception of Medfly, for which we have developed the 
specific systems approach described below as mitigation, the pests of 
concern (tomato fruit borer, the pea leafminer, and the potato spindle 
tuber viroid) exhibit symptoms that are macroscopic and detectable upon 
visual inspection in the production areas or during pre-export or port-
of-entry inspections. Specifically:
     Tomato fruit borer larvae penetrate the fruit and may 
cause the fruit to fall or become otherwise unmarketable. More mature 
larvae create large exit holes in the fruit that can be easily 
detected. In addition, the screen size required by the systems approach 
described below is too small to allow the entry of adult tomato fruit 
borers.
     Pea leafminers spend a majority of their lifecycle in 
larval form, mining host leaves. These mines are easily detectable via 
visual inspection.
     Potato spindle tuber viroid is primarily a pest of 
potatoes, but may also affect tomatoes. Symptoms of the viroid, except 
for mild strains, would be readily detected with the naked eye. Recent 
data on the potato spindle tuber viroid indicate there has only been 
one interception of the viroid from one country in Central America, 
Costa Rica. The interception was on potatoes, not tomatoes, and was 
easily detected by inspectors. This evidence suggests that it is 
unlikely that the potato spindle tuber viroid will be found on tomatoes 
from Central America, and we believe that inspections throughout the 
growing season will provide sufficient mitigation.
    Thus, we would utilize inspection as the primary mitigation measure 
for tomato fruit borer, pea leafminer, and potato spindle tuber viroid, 
and the specific systems approach described in this document would 
serve to mitigate the risks associated with Medfly. The systems 
approach, outlined below, utilizes pest exclusionary greenhouses and 
packinghouses. As stated previously, we believe this approach could be 
used by producers throughout Costa Rica, El Salvador, Guatemala, 
Honduras, Nicaragua, and Panama, given the similar pest risks present 
in these countries. We are confident that these measures would 
effectively mitigate the risk posed by Medfly while production site, 
pre-export, and port-of-entry inspections would continue to provide 
mitigation for any additional pests. Green tomatoes could continue to 
be imported as before, but the systems approach would provide importers 
with alternative sources of tomatoes at a more advanced stage of 
ripeness. In addition, we would also allow the importation of pink or 
red field-grown tomatoes from areas certified free of Medfly. The 
proposed conditions for the importation of greenhouse-grown and field-
grown tomatoes are explained in the following paragraphs.

Areas Where Medfly Is Present

    Tomatoes grown in an area that has not been determined to be free 
of Medfly would be required to be grown in approved production sites 
registered with the national plant protection organization (NPPO) of 
the exporting country and would be subject to the systems approach 
detailed below. Initial approval of the production sites would be 
completed jointly by the exporting country's NPPO and APHIS. 
Representatives of the exporting country's NPPO would have to visit and 
inspect the production sites monthly, starting 2 months before harvest 
and continuing through until the end of the shipping season. APHIS 
could monitor the production sites at any time during this period.
    Tomato production sites would have to consist of pest exclusionary 
greenhouses with self-closing double doors. All additional openings 
would be required to be covered with 1.6 (or less) millimeter 
screening. Registered sites would have to contain traps with an 
approved protein bait for the detection of Medfly within the 
greenhouses at a density of four traps per hectare, with a minimum of 
at least two traps per greenhouse. Traps would have to be serviced on a 
weekly basis. Medfly traps with an approved protein bait would also 
have to be placed inside a buffer area 500 meters wide around the 
registered production site, at a density of 1 trap per 10 hectares. 
These traps would have to be checked at least once every 7 days. At 
least one trap would have to be near the greenhouse. Traps would have 
to be set for at least 2 months prior to export, and trapping would 
have to continue to the end of harvest. Capture of 0.7 or more Medflies 
per trap per week within the buffer zone would suspend or delay the 
harvest, depending on whether the harvest had begun, for consignments 
of tomatoes from that production site until APHIS and the exporting 
country's NPPO determine that the pest risk has been mitigated.
    If a single Medfly is detected inside a registered production site 
or in a consignment, the registered production site would lose its 
ability to export tomatoes to the United States until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation has 
been achieved. For the other pests of concern listed above, the 
greenhouse would have to be inspected prior to harvest, and if any of 
these pests or any other quarantine pests is found to be generally 
infesting the greenhouse, the NPPO would not allow export from that 
production site until APHIS and the NPPO agree that risk mitigation has 
been achieved. If the NPPO detected any quarantine pests in the 
consignment, the shipment would be deemed ineligible for export to the 
United States.
    The exporting country's NPPO would have to maintain records of trap 
placement, checking of traps, and any Medfly captures, as well as 
production site and packinghouse inspection results. In addition, the 
exporting country's NPPO would have to maintain an APHIS-approved 
quality control program to monitor or audit the trapping program. The 
trapping records would have to be maintained for APHIS's review.
    We would require that tomatoes be packed within 24 hours of harvest 
in a pest-exclusionary packinghouse. The tomatoes would have to be 
safeguarded by an insect-proof mesh screen or plastic tarpaulin while 
in transit from the production site to the packinghouse and while 
awaiting packing. The tomatoes would have to be packed in insect-proof 
cartons or containers, or covered with insect-proof mesh or plastic 
tarpaulin, for transit into the United States. These safeguards would 
have to remain intact until arrival in the United States or the 
shipment would not be allowed to enter the United States.
    During the time the packinghouse is in use for exporting fruit to 
the United States, the packinghouse could accept fruit only from 
registered approved production sites.
    The exporting country's NPPO would be responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of tomatoes would have to be accompanied by a 
phytosanitary certificate issued by the NPPO and bearing the 
declaration, ``These

[[Page 6013]]

tomatoes were grown in an approved production site and the shipment has 
been inspected and found free of the pests listed in the 
requirements.'' The shipping box would have to be labeled with the 
identity of the production site.

Medfly-Free Areas

    We would allow tomatoes grown in a Medfly-free area to be imported 
under conditions less stringent than those described above for tomatoes 
grown in areas where Medfly is present. The tomatoes would have to be 
grown and packed in an area that APHIS has determined to be free of 
Medfly in accordance with the procedures described in Sec.  319.56-
2(f); currently, the Department of Peten in Guatemala is the only 
Medfly-free area in the Central American countries covered by this 
proposed rule.
    For the tomato fruit borer, pea leafminer, and potato spindle tuber 
viroid, the production site would have to be inspected prior to harvest 
and if any of these pests or any other quarantine pests are found to be 
generally infesting the production site, the NPPO would not allow 
export from that production site until APHIS and the NPPO agree that 
risk mitigation has been achieved. If the NPPO detects any quarantine 
pests in the consignment, the shipment would be deemed ineligible for 
export to the United States.
    We would require that the tomatoes be packed in insect-proof 
cartons or containers, or covered with insect-proof mesh or plastic 
tarpaulin, for transit into the United States. These safeguards would 
have to remain intact until arrival in the United States or the 
shipment would not be allowed to enter the United States. These 
measures would be necessary since, although the production area is 
Medfly-free, the tomatoes would need to be protected against 
infestation while in transit.
    The exporting country's NPPO would be responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of tomatoes would have to be accompanied by a 
phytosanitary certificate issued by the NPPO and bearing the 
declaration, ``These tomatoes were grown in an area recognized to be 
free of Medfly and the shipment has been inspected and found free of 
the pests listed in the requirements.'' The shipping box would have to 
be labeled with the identity of the production site.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The 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.
    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of their rules on small businesses, 
organizations, and governmental jurisdictions. In accordance with 
section 603 of the RFA, we have prepared an initial regulatory 
flexibility analysis describing the expected impact of the changes 
proposed in this document on small entities.
    Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the 
Secretary of Agriculture is authorized to regulate the importation of 
plants, plant products, and other articles to prevent the introduction 
of plant pests and noxious weeds.
    We are proposing to amend the regulations governing the importation 
of fruits and vegetables in order to allow pink and red tomatoes grown 
in approved registered production sites in Costa Rica, El Salvador, 
Guatemala, Honduras, Nicaragua, and Panama to be imported into the 
United States without treatment. The conditions to which the proposed 
importation of tomatoes would be subject, including trapping, pre-
harvest inspection, and shipping procedures, are designed to prevent 
the introduction of quarantine pests into the United States. This 
action would allow for the importation of pink and red tomatoes from 
those countries in Central America while continuing to provide 
protection against the introduction of quarantine pests into the United 
States.

Central American Production and Exports

    While agriculture is an important industry in the countries that 
would be affected by this rule, it does not account for the largest 
share of gross domestic product in any of the countries. Tomatoes do 
not appear to be major crops in those Central American countries. 
However, production and exports of tomatoes are following upward 
trends.
    Tomato production in Central America has been steadily increasing 
since the early 1960s. Over this period, production has increased 
almost 300 percent. In conjunction with this increase in production, 
exports of tomatoes from the region have also increased. Exports in 
2003 were 42 times the exports in 1962. Between 1980 and 2003, exports 
increased by 45 percent. From 1962 to 2003, exports of tomatoes to 
countries within Central America accounted for 96 percent of total 
exports. In more recent times, specifically the period between 1980 and 
2003, this percentage has increased by 99 percent. Thus, the vast 
majority of the tomatoes exported from any Central American country are 
destined for another country within the same region.

U.S. Import Levels

    U.S. imports of Central American tomatoes have fluctuated greatly 
over the last 15 years.\2\ In fact, 2003 was the end of a 10-year 
period during which the United States did not import tomatoes from any 
Central American country. U.S. imports of fresh tomatoes principally 
originate in Mexico, Canada, and the Netherlands, with Mexico being by 
far the largest supplier.
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    \2\ It is important to note here that this discussion refers to 
imports of all varieties of tomatoes. Disaggregated data were not 
available for this analysis.
---------------------------------------------------------------------------

    Although this proposed rule would allow for more liberal 
importation of tomatoes from certain Central American countries, it is 
unlikely that the proposed changes would lead to dramatic increases in 
U.S. import levels from this region.

Effects on Small Entities

    This proposed rule would affect domestic producers of tomatoes as 
well as importers that deal with these commodities. It is likely that 
the entities affected would be small according to Small Business 
Administration (SBA) guidelines. As detailed below, information 
available to APHIS indicates that the effects on these small entities 
would not be significant.
    Two alternatives to the proposed course of action are as follows: 
Maintaining the status quo with respect to the importation of tomatoes 
from these Central American countries (i.e., green tomatoes only) or 
allowing importation without establishing the proposed risk 
mitigations.
    The first alternative would maintain current safeguards against the 
entry of quarantine pests. However, this option would also mean that 
those specified Central American countries as well as the United States 
would forgo the economic benefits expected to be afforded by the 
proposed trade.
    Allowing the importation of fresh tomatoes from certain Central 
American countries under phytosanitary requirements less restrictive 
than are proposed could potentially lead to the introduction of pests 
not currently found in the United States. This option could result in 
significant damage and costs to domestic production and is not 
desirable for those reasons.

[[Page 6014]]

    Affected U.S. tomato producers are expected to be small based on 
the 2002 Census of Agriculture data and SBA guidelines for entities in 
two farm categories: Other Vegetable (except Potato) and Melon Farming 
(North American Industry Classification System [NAICS] code 111219) and 
Other Food Crops Grown Under Cover (NAICS code 111419). The SBA 
classifies producers in these farm categories as small entities if 
their total annual sales are $750,000 or less. APHIS does not have 
information on the size distribution of domestic tomato producers, but 
according to 2002 Census data, there were a total of 2,128,892 farms in 
the United States.\3\ Of this number, approximately 97 percent had 
total annual sales of less than $500,000 in 2002, which is well below 
the SBA's small entity threshold for commodity farms.\4\ This indicates 
that the majority of farms are considered small by SBA standards, and 
it is reasonable to assume that most of the 19,539 tomato farms that 
could be affected by the proposed rule would also qualify as small. In 
the case of fruit and vegetable wholesalers (NAICS code 422480),\5\ 
those entities with fewer than 100 employees are considered small by 
SBA standards.\6\ In 1997, there were a total of 4,811 fruit and 
vegetable wholesale trade farms in the United States.\7\ Of these 
farms, 4,610 or 95.8 percent employed fewer than 100 employees and were 
considered small by SBA standards. Between 1997 and 2002, there is not 
likely to have been substantial changes in the industry. Therefore, 
domestic producers and importers that may be affected by this proposed 
rule are predominantly small entities.
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    \3\ This number represents the total number of farms in the 
United States, thus including barley, buckwheat, corn, millet, oats, 
rice, soybean, and sugarcane farms.
    \4\ Source: SBA and 2002 Census of Agriculture.
    \5\ Note that this NAICS code relates to the 1997 Economic 
Census. The 2002 NAICS code for this group is 424480.
    \6\ For NAICS 424480, SBA guidelines state that an entity with 
not more than 100 employees should be considered small unless that 
entity is a Government contractor. In this case, the size standard 
increases to 500 employees. However, in this instance, it is fair to 
assume that fruit and vegetable importers will not be under 
Government contract since it is against regulations for imports to 
be used in relevant Government programs (e.g. school lunch 
programs).
    \7\ Source: SBA and 1997 Economic Census.
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    Economic analysis of the expected increase in imports of tomatoes 
from Central America shows that the proposed importation of this 
commodity would lead to negligible changes in domestic prices. APHIS 
estimates that an additional 13,092 metric tons of tomatoes may be 
imported from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, 
and Panama on a yearly basis. Using historical consumption data to 
estimate an elasticity of demand for tomatoes, an increase in imports 
of this size would result in a price decrease of $0.50 per 
hundredweight (cwt) overall.

                                 Table 1.--U.S. Supply, Utilization, and Farm Weight Price of Fresh Tomatoes, 2000-2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Supply                              Utilization                 Season-average price
                                                 -------------------------------------------------------------------------------------------------------
                      Year                                                                                                                     Constant
                                                   Production    Imports       Total       Exports      Domestic    Per capita    Current        2000
                                                                                                                       use        dollars      dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          (Million pounds)                           (Pounds)            ($/cwt)
-------------------------------------------------
2000............................................      4,162.0      1,609.5      5,771.5        410.4      5,361.2         19.0       $30.70       $30.70
2001............................................      4,061.1      1,815.6      5,876.7        398.2      5,478.5         19.2        30.00        29.30
2002............................................      4,289.3      1,896.2      6,185.5        332.1      5,853.4         20.3        31.60        30.36
2003............................................      3,909.8      2,070.7      5,980.5        314.1      5,666.4         19.5        36.70        34.62
2004............................................      3,975.7      2,054.6      6,030.3        367.5      5,662.8         19.3        36.70        33.92
2005f...........................................      4,086.0      2,000.0      6,086.0        360.0      5,726.0         19.4           --          --
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: --= not available, f = ERS forecast.
Source: USDA/ERS, ``Vegetables and Melons Yearbook,'' http://usda.mannlib.cornell.edu/data-sets/specialty/89011/.

    For this analysis, it is assumed that imports of tomatoes from 
Central America would compete with all fresh tomatoes produced 
domestically. In 2004, U.S. fresh tomato production totaled 3,976 
million pounds (table 1). APHIS estimates that an additional 13,092 
metric tons (28.7 million pounds) of tomatoes would be imported from 
Central America. These imports would account for only 0.7 percent of 
domestic production in 2004 and 1.4 percent of 2004 imports. Given the 
additional imports, it is possible that the domestic price would fall 
by as much as $0.50 per cwt. In 2004, the average producer price was 
$36.70 per cwt. Thus, the expected price decline would represent a 1.4 
percent decline. However, this percentage is likely overstated because 
the new imports would be close substitutes for tomatoes from other 
countries. Imports from Central America would probably displace at 
least some of those imports from other countries. This likely 
substitution is not taken into account in the analysis.
    In order to put this price change into perspective, we consider it 
in terms of average revenue for small-entity tomato producers. Due to 
the lack of data on tomato farming, it is difficult to determine an 
accurate potential change in revenues for all producers. Averaging the 
total drop in revenues across all firms would overstate the loss to 
small producers while understating that for the larger ones. Data from 
the 2002 Census of Agriculture were used to estimate tomato production 
by small and large firms. This, in turn, was used to estimate revenues 
for these two categories. An average revenue per firm was then 
calculated. We conclude that any producer with fewer than 80 acres of 
tomatoes may be considered small, based on industry yields and revenues 
and the small-entity definition of not more than $750,000 in annual 
revenue. For small-entity producers with fewer than 100 acres (the 
reported category closest to 80 acres), a price change of $0.50 per cwt 
would lead to an estimated per firm decline in annual revenue of $293, 
or 1.6 percent. Given this small change and recalling that these 
effects are likely overstated, domestic producers are not likely to be 
significantly impacted by the proposed rule.
    Although domestic producers may face slightly lower prices as a 
result of the potential increase in the tomato supply, these price 
changes are expected to be negligible. APHIS welcomes public comment on 
these preliminary estimates. Domestic import firms, on the other hand, 
may actually

[[Page 6015]]

benefit from more open trade with Central America resulting from 
increased opportunities that could be made available as a result of 
establishing new sources of tomatoes at a more advanced stage of 
ripeness. In both instances, changes of the magnitude presented here 
should not have large repercussions for either domestic producers or 
importers of tomatoes.
    This proposed rule contains information collection or recordkeeping 
requirements (see ``Paperwork Reduction Act'' below).

Executive Order 12988

    This proposed rule would allow pink and red tomatoes grown in 
approved registered production sites in Costa Rica, El Salvador, 
Guatemala, Honduras, Nicaragua, and Panama to be imported into the 
United States. If this proposed rule is adopted, State and local laws 
and regulations regarding tomatoes imported under this rule would be 
preempted while the fruit is in foreign commerce. Fresh fruits and 
vegetables are generally imported for immediate distribution and sale 
to the consuming public and would remain in foreign commerce until sold 
to the ultimate consumer. The question of when foreign commerce ceases 
in other cases must be addressed on a case-by-case basis. 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

    To provide the public with documentation of APHIS' review and 
analysis of the potential environmental impacts associated with the 
importation of tomatoes from Central America, we have prepared an 
environmental assessment. The environmental assessment, entitled 
``Proposed Rule for the Importation of Tomatoes from Central America,'' 
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).
    The environmental assessment may be viewed on the Regulations.gov 
Web site or in our reading room (see ADDRESSES above for instructions 
for accessing Regulations.gov and information on the location and hours 
of the reading room). You may request paper copies of the environmental 
assessment by calling or writing to the person listed under FOR FURTHER 
INFORMATION CONTACT. Please refer to the title of the environmental 
assessment when requesting copies.

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-
2006-0009. Please send a copy of your comments to: (1) Docket No. 
APHIS-2006-0009, 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.
    In this document, we are proposing to allow certain types of 
tomatoes grown in approved registered production sites in Costa Rica, 
El Salvador, Guatemala, Honduras, and Nicaragua to be imported into the 
United States without treatment, under certain conditions. Those 
conditions include trapping, pre-harvest inspection, and shipping 
procedures designed to prevent the introduction of quarantine pests 
into the United States. These precautions, along with other 
requirements, would allow for the importation of tomatoes from those 
countries in Central America while continuing to provide protection 
against the introduction of quarantine pests into the United States.
    Allowing tomatoes to be imported would necessitate the use of 
certain information collection activities, including the completion of 
pre-harvest inspections, phytosanitary certificates, and fruit fly 
monitoring records.
    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 0.0061148 hours per response.
    Respondents: National plant protection organizations and growers.
    Estimated annual number of respondents: 172.
    Estimated annual number of responses per respondent: 26,081.
    Estimated annual number of responses: 4,485,992.
    Estimated total annual burden on respondents: 27,431 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 (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

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 would continue to read as 
follows:


[[Page 6016]]


    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 319.56-2dd would be amended by adding a new paragraph 
(f) to read as follows:


Sec.  319.56-2dd  Administrative instructions: conditions governing the 
entry of tomatoes.

* * * * *
    (f) Tomatoes (fruit) (Lycopersicon esculentum) from certain 
countries in Central America. Pink or red tomatoes may be imported into 
the United States from Costa Rica, El Salvador, Guatemala, Honduras, 
Nicaragua, and Panama only under the following conditions:
    (1) From areas free of Mediterranean fruit fly:
    (i) The tomatoes must be grown and packed in an area that has been 
determined by APHIS to be free of Mediterranean fruit fly (Medfly) in 
accordance with the procedures described in Sec.  319.56-2(f) of this 
subpart.
    (ii) A pre-harvest inspection of the production site must be 
conducted by the national plant protection organization (NPPO) of the 
exporting country for pea leafminer, tomato fruit borer, and potato 
spindle tuber viroid. If any of these pests are found to be generally 
infesting the production site, the NPPO may not allow export from that 
production site until the NPPO and APHIS have determined that risk 
mitigation has been achieved.
    (iii) The tomatoes must be packed in insect-proof cartons or 
containers or covered with insect-proof mesh or plastic tarpaulin at 
the packinghouse for transit to the United States. These safeguards 
must remain intact until arrival in the United States.
    (iv) The exporting country's NPPO is responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of tomatoes must be accompanied by a phytosanitary 
certificate issued by the NPPO and bearing the declaration, ``These 
tomatoes were grown in an area recognized to be free of Medfly and the 
shipment has been inspected and found free of the pests listed in the 
requirements.''
    (2) From areas where Medfly is considered to exist:
    (i) The tomatoes must be grown in approved registered production 
sites. Initial approval of the production sites will be completed 
jointly by the exporting country's NPPO and APHIS. The exporting 
country's NPPO must visit and inspect the production sites monthly 
starting 2 months before harvest and continuing through until the end 
of the shipping season. APHIS may monitor the production sites at any 
time during this period.
    (ii) Tomato production sites must consist of pest-exclusionary 
greenhouses, which must have self-closing double doors and have all 
other openings and vents covered with 1.6 (or less) mm screening.
    (iii) Registered sites must contain traps for the detection of 
Medfly both within and around the production site as follows:
    (A) Traps with an approved protein bait for Medfly must be placed 
inside the greenhouses at a density of four traps per hectare, with a 
minimum of two traps per greenhouse. Traps must be serviced on a weekly 
basis.
    (B) If a single Medfly is detected inside a registered production 
site or in a consignment, the registered production site will lose its 
ability to export tomatoes to the United States until APHIS and the 
exporting country's NPPO mutually determine that risk mitigation is 
achieved.
    (C) Medfly traps with an approved protein bait must be placed 
inside a buffer area 500 meters wide around the registered production 
site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. 
These traps must be checked at least every 7 days. At least one of 
these traps must be near the greenhouse. Traps must be set for at least 
2 months before export and trapping must continue to the end of the 
harvest.
    (D) Capture of 0.7 or more Medflies per trap per week will delay or 
suspend the harvest, depending on whether harvest has begun, for 
consignments of tomatoes from that production site until APHIS and the 
exporting country's NPPO can agree that the pest risk has been 
mitigated.
    (E) The greenhouse must be inspected prior to harvest for pea 
leafminer, tomato fruit borer, and potato spindle tuber viroid. If any 
of these pests, or other quarantine pests, are found to be generally 
infesting the greenhouse, exports from that production site will be 
halted until the exporting country's NPPO and APHIS determine that the 
pest risk has been mitigated.
    (iv) The exporting country's NPPO must maintain records of trap 
placement, checking of traps, and any Medfly captures in addition to 
production site and packinghouse inspection records. The exporting 
country's NPPO must maintain an APHIS-approved quality control program 
to monitor or audit the trapping program. The trapping records must be 
maintained for APHIS's review.
    (v) The tomatoes must be packed within 24 hours of harvest in a 
pest-exclusionary packinghouse. The tomatoes must be safeguarded by an 
insect-proof mesh screen or plastic tarpaulin while in transit to the 
packinghouse and while awaiting packing. The tomatoes must be packed in 
insect-proof cartons or containers, or covered with insect-proof mesh 
or plastic tarpaulin, for transit into the United States. These 
safeguards must remain intact until arrival in the United States or the 
consignment will be denied entry into the United States.
    (vi) During the time the packinghouse is in use for exporting 
tomatoes to the United States, the packinghouse may only accept 
tomatoes from registered approved production sites.
    (vii) The exporting country's NPPO is responsible for export 
certification, inspection, and issuance of phytosanitary certificates. 
Each shipment of tomatoes must be accompanied by a phytosanitary 
certificate issued by the NPPO and bearing the declaration, ``These 
tomatoes were grown in an approved production site and the shipment has 
been inspected and found free of the pests listed in the 
requirements.'' The shipping box must be labeled with the identity of 
the production site.

    Done in Washington, DC, this 31st day of January 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E6-1553 Filed 2-3-06; 8:45 am]
BILLING CODE 3410-34-P