[Federal Register Volume 71, Number 166 (Monday, August 28, 2006)]
[Rules and Regulations]
[Pages 50837-50843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14219]



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  Federal Register / Vol. 71, No. 166 / Monday, August 28, 2006 / Rules 
and Regulations  

[[Page 50837]]



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: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are amending 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. The conditions to which the importation of tomatoes will 
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 will 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: Effective Date: August 28, 2006.

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 20737-1228; (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 amending that section by 
adding a new paragraph (f) that sets forth administrative instructions 
concerning the importation of pink and red tomatoes from Costa Rica, El 
Salvador, Guatemala, Honduras, Nicaragua, and Panama.
    On February 6, 2006, we published in the Federal Register (71 FR 
6011-6016, Docket No. APHIS-2006-0009) a proposal \1\ to amend the 
regulations 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 under 
certain conditions.
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov, click on the ``Advanced Search'' tab, 
and select ``Docket Search.'' In the Docket ID field, enter APHIS-
2006-0009, then click on ``Submit.'' Clicking on the Docket ID link 
in the search results page will produce a list of all documents in 
the docket.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
April 7, 2006. We received 15 comments by that date. They were from 
representatives of State and foreign agricultural departments, industry 
organizations, importers and exporters, producers, farmers, and 
individuals. Eight of these commenters supported the proposed rule. The 
others expressed reservations, which are discussed below.

General Comments

    In our proposal, we explained that the proposed conditions to which 
tomatoes from Central America would be subject were very similar to 
current requirements for importing tomatoes from France, Morocco and 
Western Sahara, and Spain. We also stated that 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. 
With respect to those numbers, one commenter asked if the pest 
interception rates were for Medfly or for some other pest.
    The interceptions on tomatoes from France and Spain were 
leafminers, not Medfly.
    One commenter questioned why the pea leafminer (Liriomyza 
huidobrensis) was included in the list of quarantine pests of concern 
in the risk management document. The commenter said it would be 
unlikely for the pea leafminer to be introduced on tomato fruit, as 
that pest is commonly associated with only foliage or leaf litter, and 
asked if those plant parts will be allowed entry.
    The commenter is correct in that the pea leafminer feeds on foliage 
and not fruit. While foliage and leaf litter will not be permitted 
entry with tomato fruit, leafminer pupae may fall from tomato foliage 
onto the fruit during harvesting, packing, etc. These pupae are easy to 
detect and inspectors should readily detect any that may end up on 
fruit.
    Two commenters expressed concern that allowing more imports of 
tomatoes from foreign markets would result in negative economic impacts 
on small family farms in the United States. Two additional commenters 
stated that the Florida tomato industry has already experienced 
disasters such as freezes and hurricanes and that the entry of Medfly 
into Florida could devastate an already struggling industry.
    Our proposed rule was prepared in response to requests from several 
Central American countries that we allow the importation of pink and 
red tomatoes grown under a systems approach. Our scientific review of 
pests, similar programs, and other available documents led us to 
conclude that pest risk would be mitigated under the systems approach. 
The Plant Protection Act authorizes the Secretary to prohibit or 
restrict importations only when necessary to prevent the introduction 
of plant pests.
    One commenter stated that any imports of pink and red tomatoes from 
the Central American countries as proposed will increase the risk of 
the Medfly entering the United States and noted that the proposed rule 
claims only that the risk of Medfly introduction will be mitigated, not 
eliminated.
    This rule is designed to prevent the introduction and dissemination 
of quarantine pests into the United States. We recognize that there is 
no such thing as ``zero risk'' with respect to the

[[Page 50838]]

importation of agricultural commodities, so we cannot claim that 
required phytosanitary measures will entirely eliminate all risk. With 
regard to pink and red tomatoes from Central America, we have 
determined that the requirements and mitigation measures set forth in 
this rule are effective and provide the appropriate level of protection 
to prevent the introduction and dissemination of the pests of concern 
in the United States. Further, pink and red tomatoes are not a 
preferred host of Medfly and Medfly has never been intercepted in 
commercial shipments of tomatoes grown under similar systems approaches 
in other countries.
    One commenter stated that we did not clearly explain how the risks 
presented by tomatoes from Central America were similar to the risks 
presented by tomatoes from other countries. The commenter asked that we 
explain this conclusion. In addition, the commenter stated that we did 
not provide an explanation as to how the systems approach itself was 
very similar to the current requirements for importing tomatoes from 
France, Morocco and Western Sahara, and Spain, nor did we provide any 
documentation that the enforcement regimes in Europe are similar or 
equivalent to those in Central America.
    With regard to risks presented by Central American tomatoes, we did 
not state that the risks associated with tomatoes from Central America 
and other countries were the same, merely that the systems approach we 
were proposing to add has been successful at mitigating the risk of 
Medfly introduction into the United States when applied to tomatoes 
produced in those other countries. With regard to the specific 
similarities of the systems approaches, tomatoes from Spain, France, 
and Morocco and Western Sahara are imported under conditions similar to 
those which will be applied to Central American tomatoes. The use of 
pest-exclusionary greenhouses, trapping/triggering programs, and 
inspection are similar in all of the programs. The requirements 
pertaining to the importation of pink and red tomatoes from Spain and 
France are contained in Sec.  319.56-2dd, paragraphs (a) and (b), and 
requirements for Morocco and Western Sahara are contained in paragraph 
(c), and may be compared to the provisions of Sec.  319.56-2dd, 
paragraph (f) in this rule.
    With regard to growing conditions, the proposed rule did not make 
any claims as to the similarity of the growing conditions and practices 
in France, Morocco and Western Sahara, and Spain, thus we have not 
prepared any documentation on that subject. The enforcement regimes of 
those countries with respect to their tomato export programs would 
equate to compliance with the relevant regulations in Sec.  319.56-2dd, 
thus any similarities in their respective enforcement regimes would be 
in line with the similarities among the respective paragraphs in those 
regulations.
    One commenter stated that in a draft report titled, ``Exotic Fruit 
Fly Strategic Plan, FY 2006-2010,'' APHIS acknowledged that the fruit 
fly populations in Central America and in Mexico are a significant 
threat to U.S. agriculture due to the large numbers of people migrating 
north from fruit fly infested areas. The commenter stated that APHIS 
did not acknowledge this risk in the proposed rule.
    The proposed rule pertains to the importation of commercial 
shipments of tomatoes from the specified Central American countries. 
Therefore, the risk documentation prepared for the proposed rule, as 
well as the proposed rule itself, focus on the commercial fruit pathway 
and do not examine or seek to address the risks associated with 
individuals migrating from fruit fly infested areas in those countries 
to the United States.

Alternatives Considered

    One commenter stated that APHIS should consider requiring the use 
of aerial spraying of spinosad in the areas where Medfly exists and/or 
a program releasing sterile fruit flies in the Medfly areas of these 
countries to reduce the risk of exporting Medfly on pink and red 
tomatoes to the United States.
    The measures suggested by the commenter would be undertaken by a 
country seeking to eradicate a fruit fly or to establish areas of pest 
freedom or low prevalence. They are not phytosanitary measures APHIS 
can require with respect to a particular imported commodity.
    One commenter requested that we limit distribution of pink and red 
tomatoes to States with crops that are not susceptible to Medfly or 
other quarantine pests from Central American countries. The commenter 
stated that at a minimum, Central American tomatoes should not be 
allowed to be distributed in the southern United States.
    Based on our experience with similar programs in France, Spain, and 
Morocco and Western Sahara, we believe that limiting distribution of 
tomatoes in the United States would be beyond what is necessary to 
ensure pest mitigation is achieved. As stated previously, the Plant 
Protection Act authorizes the Secretary to prohibit or restrict 
importations only when necessary to prevent the introduction of plant 
pests.
    One commenter stated that APHIS did not consider the use of 
ethylene gas on green tomatoes to ripen them. The commenter added that 
using ethylene gas will not increase the risk of Medfly introduction 
because it would involve importing green tomatoes only.
    Ethylene gas is not a phytosanitary measure; therefore, we would 
not require the use of it in our regulations. Further, green tomatoes 
from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and 
Panama are currently enterable into the United States and importers are 
free to use ethylene gas to color tomatoes if they desire.
    One commenter stated that we did not consider irradiation as an 
alternative.
    As stated previously, we evaluated the risks associated with pink 
and red tomatoes from Central America and determined that the risks 
could be mitigated through the application of the measures described in 
the proposed rule and in this document. If we had determined that the 
designated measures were insufficient to provide an appropriate level 
of quarantine security, it is possible that we would have considered 
requiring the application of phytosanitary treatments such as 
irradiation. That was not necessary, however.

Central American National Plant Protection Organizations

    One commenter asked if APHIS will provide oversight to ensure 
compliance with the program.
    APHIS will provide oversight of the programs by monitoring, 
conducting inspections, reviewing reports, and removing from the 
program any participating sites that are not in compliance with the 
mitigation measures.
    A second commenter stated that he requested specific information 
regarding the participating national plant protection organizations 
(NPPOs) from APHIS and was provided with contact information for each 
NPPO instead of the specific information. The commenter questioned our 
ability to trust the individual Central American NPPOs to provide 
sufficient oversight if we do not have specific information on their 
workforces and capacities. One commenter raised similar concerns 
stating that a systems approach is complicated and assumes that the 
necessary technical, inspection, and other resources are available to 
the exporting countries and are effective.
    The NPPO of each of the countries covered by the rule, like the 
NPPO of

[[Page 50839]]

any country, is necessarily concerned with, among other things, the 
detection and management of quarantine pests, including fruit flies, 
and thus administers programs to prevent the introduction and spread of 
quarantine pests and promote appropriate measures for their control. 
Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama are 
all parties to the International Plant Protection Convention (IPPC), 
which is an international treaty to secure action to prevent the spread 
and introduction of pests of plants and plant products, and to promote 
appropriate measures for their control.
    We do not routinely request that our trading partners provide us 
with specific information concerning the number and experience level of 
the individual employees of their NPPOs, nor do our trading partners 
normally ask that information of APHIS. We have full confidence in the 
Central American NPPOs to oversee the prescribed mitigation measures. 
Further, it is in the best interest of the participating Central 
American countries to succeed with this program and doing so will 
require they meet our phytosanitary standards.
    One commenter asked that APHIS include provisions for conducting 
compliance audits during the active shipping and growing season to 
ensure full compliance with the systems approach. The commenter added 
that results of these compliance audits should be made available for 
review by all stakeholders in the United States.
    As described in the proposed rule and in this document, APHIS would 
be directly involved in the approval of production sites and 
determinations as to whether risk mitigation has been achieved 
following pest detections. In addition, each exporting country's NPPO 
will have to maintain an APHIS-approved quality control program to 
monitor or audit its fruit fly trapping program, and the trapping 
records will have to be maintained for APHIS review. We believe that 
these measures will be adequate to provide the compliance assurance 
sought by the commenter.

Economic Analysis

    One commenter took issue with the statement in the economic 
analysis that, ``[b]etween 1997 and 2002 there is not likely to have 
been substantial changes in the [domestic] industry.'' The commenter 
said this statement is unsupportable and not relevant to the potential 
economic impacts on U.S. tomato growers in 2006.
    Our statement that ``Between 1997 and 2002, there is not likely to 
have been substantial changes in the industry'' followed three 
sentences describing fruit and vegetable wholesale trade firms (i.e., 
potential importers) and was intended to indicate that we believe the 
majority of those firms would still be small entities in 2002, as they 
were in 1997. The statement was not intended to apply to tomato 
growers.
    One commenter took issue with a statement in the economic analysis 
that the proposed rule would provide importers with alternative sources 
of tomatoes at a more advanced stage of ripeness. The commenter said 
that while this is technically true, it is meaningless because 
importers have not requested an alternative source for pink and red 
tomatoes and there is no indication that there are insufficient 
supplies of green, pink, or red tomatoes available in the United 
States.
    The availability of alternative sources of tomatoes at a more 
advanced stage of ripeness was cited as a potential result of the 
proposed action, not as an initiating factor behind it.
    One commenter took issue with the statement that the effects on 
small businesses would not be significant. The commenter noted that 
APHIS indicates it does not have information on the size distribution 
of domestic tomato producers and makes assumptions, for example, that 
the subject imports will ``compete with all fresh tomatoes produced 
domestically.'' The commenter claimed that this statement was 
inaccurate based solely on the cost of transportation from Central 
America to all parts of the United States. The commenter stated that 
APHIS also notes that the domestic price would fall by as much as $0.50 
per cwt. The commenter stated that even if the price decline was 
``only'' 1.4 percent, this does not render the decline insubstantial, 
and that the answer depends on the marketplace at the time the imports 
enter the United States because we are dealing with a perishable 
commodity, and with pink and red tomatoes we are dealing with a most 
perishable commodity. In such cases, the commenter stated, a small 
decline in price can and has had a profound negative effect on the 
price of tomatoes, and that if these tomatoes were to enter the United 
States during the winter months, then only the tomato producers in 
Florida would be harmed and the harm could be much greater than that 
suggested in the economic analysis.
    The economic analysis did not quantitatively account for the 
possibility that imports from Central America may displace imports from 
other countries. In fact, the economic analysis cautions that the 
impacts are likely overstated because the displacement of other tomato 
imports was not taken into account. Florida and other tomato-producing 
States do not produce enough field-grown tomatoes to meet domestic 
demand. Thus, domestic field production is supplemented by domestic 
greenhouse production and by imports. Over the past 6 years, fresh 
tomato imports have comprised approximately 34 percent of U.S. supply 
(production plus imports minus exports). Over one-third of annual 
imports arrive in the United States during the winter months, with the 
bulk of these imports coming from Mexico.
    We are unclear as to the commenter's intent in stating that 
transportation costs of imports of fresh tomatoes from Central America 
would prevent them from competing with all fresh tomatoes produced 
domestically and about pink and red tomatoes being a most perishable 
commodity. We presume the commenter believes that it will not be cost 
effective, nor feasible time-wise due to a more advanced stage of 
ripeness, for importers to transport tomatoes all over the United 
States. It would appear that the commenter is concerned that the bulk 
of Central American tomato imports will end up in the southern States 
because of their closer proximity to Central America. Most of the 
tomatoes produced in Florida are shipped to markets in the eastern 
United States, while Mexican imports serve mainly the western States. 
We believe that Central American imports will follow a similar pattern 
as Mexican imports. These marketing patterns would suggest that Florida 
producers may be less affected by fresh tomato imports from Central 
America than other domestic and foreign suppliers.

Miscellaneous Change

    In our proposed provisions concerning the placement of Medfly traps 
in the buffer area surrounding each production site, we referred to 
Medfly traps with an approved protein bait. In this final rule, those 
provisions (Sec.  319.56-2dd(f)(2)(iii)(C)) refer to Medfly traps with 
an approved lure, as it will be parapheromone lures, rather than 
protein baits, that will be used outside of the greenhouses.
    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.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made

[[Page 50840]]

effective less than 30 days after publication in the Federal Register.
    This rule relieves restrictions on the importation of tomatoes from 
Central America while continuing to protect against the introduction of 
plant pests into the United States. Immediate implementation of this 
rule is necessary to provide relief to those persons who are adversely 
affected by restrictions we no longer find warranted. Making this rule 
effective immediately will allow interested producers, importers, 
shippers, and others to benefit immediately from the relief in 
restrictions. Therefore, the Administrator of the Animal and Plant 
Health Inspection Service has determined that this rule should be 
effective upon publication in the Federal Register.

Executive Order 12866 and Regulatory Flexibility Act

    This 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.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is set out below, regarding the 
economic effects of this rule 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 amending 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. The conditions to which the importation of tomatoes will 
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 will 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 
will 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.
    Nearly all of this trade has been intraregional. From 1962 to 2003, 
96 percent of Central American tomato exports were to other countries 
within Central America. 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.
---------------------------------------------------------------------------

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

Effects on Small Entities

    This rule will affect domestic producers of tomatoes as well as 
importers that deal with these commodities. It is likely that the 
entities affected will be small according to Small Business 
Administration (SBA) guidelines. As detailed below, information 
available to APHIS indicates that the effects on these small entities 
will not be significant.
    Two alternatives to this 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 risk mitigations in this 
rule.
    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 trade 
of Central American tomatoes.
    Allowing the importation of fresh tomatoes from certain Central 
American countries under less restrictive phytosanitary requirements 
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.
    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 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 firms in the United States.\7\ Of these firms, 4,610

[[Page 50841]]

or 95.8 percent employed fewer than 100 employees and were considered 
small by SBA standards. Between 1997 and 2002, there were not likely to 
have been substantial changes in the fruit and vegetable wholesale 
trade industry, thus we expect that a similar percentage of entities 
would have been small in 2002. Therefore, domestic producers and 
importers that may be affected by this rule are predominantly small 
entities.
---------------------------------------------------------------------------

    \3\ This number represents the total number of farms in the 
United States, thus includes 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.
---------------------------------------------------------------------------

    Economic analysis of the expected increase in imports of tomatoes 
from Central America shows that the importation of this commodity will 
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 
will 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
2005 \f\........................................      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 will 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 will be imported from 
Central America. These import levels equate to 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 will 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 will represent a 1.4 
percent decline. However, this percentage is likely overstated because 
the new imports will be close substitutes for tomatoes from other 
countries. Imports from Central America will 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 will 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 
will 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 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. Domestic import firms, on the 
other hand, may actually 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 rule contains various recordkeeping requirements, which were 
described in our proposed rule, and which have been approved by the 
Office of Management and Budget (see ``Paperwork Reduction Act'' 
below).

Executive Order 12988

    This rule will 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. 
State and local laws and regulations regarding tomatoes imported under 
this rule will 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 will 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 and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of tomatoes 
under the conditions specified in this rule will not have a significant 
impact on the quality of the human environment. Based on the finding of 
no significant impact, the Administrator of the Animal and Plant Health 
Inspection Service has determined that an environmental impact 
statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were

[[Page 50842]]

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 and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\8\ Copies of the 
environmental assessment and 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) 690-2817 to 
facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
---------------------------------------------------------------------------

    \8\ Go to http://www.regulations.gov, click on the ``Advanced 
Search'' tab and select ``Docket Search.'' In the Docket ID field, 
enter APHIS-2006-0009, click on Submit, then click on the Docket ID 
link in the search results page. The environmental assessment and 
finding of no significant impact will appear in the resulting list 
of documents.
---------------------------------------------------------------------------

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0286.

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 interim 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.

0
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 319.56-2dd is amended by adding a new paragraph (f) and 
revising the OMB citation at the end of the section 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 exports 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 lure 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

[[Page 50843]]

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.

(Approved by the Office of Management and Budget under control 
numbers 0579-0049, 0579-0131, and 0579-0286)

    Done in Washington, DC, this 22nd day of August 2006.
Nick Gutierrez,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-14219 Filed 8-25-06; 8:45 am]
BILLING CODE 3410-34-P