[Federal Register Volume 76, Number 148 (Tuesday, August 2, 2011)]
[Proposed Rules]
[Pages 46209-46212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19518]
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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. 76, No. 148 / Tuesday, August 2, 2011 /
Proposed Rules
[[Page 46209]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. APHIS-2011-0012]
RIN 0579-AD48
Importation of Tomatoes From the Economic Community of West
African States Into the Continental United States
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend the fruits and vegetables
regulations to allow the importation of tomatoes from the member States
of the Economic Community of West African States (ECOWAS) into the
continental United States. As a condition of entry, tomatoes from the
ECOWAS would be subject to a systems approach that would include
requirements for pest exclusion at the production site, fruit fly
trapping and monitoring, and procedures for packing the tomatoes. The
tomatoes would also be required to be accompanied by a phytosanitary
certificate issued by the national plant protection organization of the
exporting country with an additional declaration that the tomatoes had
been produced in accordance with the proposed requirements. This action
would allow for the importation of tomatoes from the ECOWAS into the
continental United States while continuing to provide protection
against the introduction of quarantine pests.
DATES: We will consider all comments that we receive on or before
October 3, 2011.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0012-0001.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2011-0012, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2011-
0012 or in our reading room, which is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 690-2817 before coming.
FOR FURTHER INFORMATION CONTACT: Mr. Phillip Grove, Regulatory
Coordinator, PPQ, APHIS, 4700 River Road, Unit 156, Riverdale, MD
20737-1236; (301) 734-6280.
SUPPLEMENTARY INFORMATION:
Background
The regulations in ``Subpart--Fruits and Vegetables'' (7 CFR
319.56-1 through 319.56-51, 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 319.56-28 of the
regulations contains administrative instructions allowing the
importation of tomatoes from various countries where the Mediterranean
fruit fly (Medfly, Ceratitis capitata) is present.
We currently do not allow the importation of fresh tomatoes from
any member of the Economic Community of West African States (ECOWAS).
The ECOWAS comprises the following members: Benin, Burkina Faso, Cape
Verde, Gambia, Ghana, Guinea, Guinea-Bissau, Ivory Coast, Liberia,
Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The government
of Senegal has requested that the Animal and Plant Health Inspection
Service (APHIS) amend the regulations to allow fresh tomatoes (Solanum
lycopersicum) to be imported from Senegal into the continental United
States. Because of the similar pest risks present in the other
countries in the ECOWAS, we prepared a regional pest risk assessment
(PRA) and a risk management document (RMD) for the importation of
tomatoes from any ECOWAS member State. Copies of the PRA and the RMD
may be obtained from the person listed under FOR FURTHER INFORMATION
CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above
for instructions for accessing Regulations.gov).
The PRA, titled ``Importation of Tomatoes, Solanum lycopersicum,
from the Economic Community of West African States (ECOWAS) into the
Continental United States'' (2009), evaluates the risks associated with
the importation of tomatoes into the continental United States from the
ECOWAS. The PRA identified 10 pests that could be introduced into the
United States through the importation of tomatoes. Seven of the pests
were determined to pose a high pest risk potential:
Bactrocera cucurbitae (melon fruit fly)
B. invadens (Asian fruit fly)
Ceratitis capitata (Medfly)
Ceratitis rosa (natal fruit fly)
Helicoverpa armigera (cotton bollworm)
H. assulta (cape gooseberry budworm)
Leucinodes orbonalis (eggplant fruit borer)
Three of the pests were determined to pose a medium pest risk
potential:
Chrysodeixis chalcites (golden twin spot moth)
Maconellicoccus hirsutus (pink hibiscus mealybug)
Nipaecoccus viridis (spherical mealybug)
APHIS has determined that measures beyond standard port-of-entry
inspection are required to mitigate the risks posed by these plant
pests. Therefore, we are proposing to allow the importation of tomatoes
from the ECOWAS into the continental United States only if they are
produced in accordance with a systems approach to mitigate pest risk as
outlined below. We are proposing to amend Sec. 319.56-28 by adding a
new paragraph (h) to the end of the section that would set out
requirements for the importation of fresh tomatoes from the ECOWAS.
Proposed Systems Approach
Production Site Requirements
Tomatoes from the ECOWAS would have to be grown in approved
production sites registered with the national plant protection
organization (NPPO) of the exporting country. Initial approval of
production sites would be completed jointly by the NPPO of the
[[Page 46210]]
exporting country and APHIS. The NPPO of the exporting country would
have to visit and inspect the production sites monthly, beginning 2
months before the harvest and continuing through the end of the
shipping season. APHIS would be able to monitor the production sites,
if necessary. This condition would ensure that the required
phytosanitary measures are properly implemented throughout the process
of growing and packing tomatoes for export to the United States.
Production sites for tomatoes would also have to be pest-
exclusionary structures (PES). The PES would be required to have self-
closing double doors, and all openings, including vents, to the outside
of the PES would have to be covered by screening with mesh openings of
not more than 1.6 mm. Screening with openings of not more than 1.6 mm
will prevent introduction of fruit flies, moths, and mealybugs.
In addition, no shade trees could be grown within 10 meters of the
entry door of the PES and no other fruit fly host plants could be grown
within 50 meters of the entry door of the PES. These requirements would
reduce the pest pressure of fruit flies outside the place of production
because, during hot, sunny weather, pests congregate in shaded areas
for survival.
Mitigation Measures for Fruit Flies
The NPPO of the exporting country would be required to set and
maintain fruit fly traps with an APHIS-approved protein bait inside the
PES, beginning 2 months prior to the start of the shipping season and
continuing through the end of the harvest. The traps would have to be
set at a rate of eight traps per hectare, with a minimum of four traps
in each PES, and checked every 7 days. We also propose to require the
NPPO of the exporting country to maintain records of trap placement,
trap maintenance, and captures of any fruit flies of concern. The
trapping records would have to be maintained for 1 year and made
available to APHIS upon request.
Capture of a single fruit fly of concern inside a PES would
immediately result in cancellation of exports to the United States from
that PES. The detection of a fruit fly of concern in a consignment at
the port of entry that is traced back to a PES would also result in
immediate cancellation of exports to the United States from that PES.
In both cases, exports from the PES in question could not resume until
APHIS and the NPPO of the exporting country have mutually determined
that the risk has been properly mitigated.
Harvesting Requirements
The stem and calyx of each tomato would have to be removed. Removal
of the stem and calyx would eliminate hiding places for small pests,
thereby allowing the pests to be detected during the NPPO's inspection.
Packinghouse Requirements
While being used for packing tomatoes for export to the United
States, the packinghouses would only be allowed to accept fruit from
registered production sites. This requirement would reduce the risk
that quarantine pests are present on or in tomatoes exported to the
United States.
In addition, no shade trees could be grown within 10 meters of the
entry door of the packinghouses, and no other fruit fly host plants
could be grown within 50 meters of the entry door of the packinghouses.
As mentioned earlier with regard to production sites, these
requirements would reduce the pest pressure of fruit flies outside the
packinghouse.
Post-Harvest Procedures
The tomatoes would have to be safeguarded by an insect-proof screen
or plastic tarpaulin while in transit to a packinghouse and while
awaiting packing. Tomatoes would have to be packed for shipment to the
United States within 24 hours of harvest in insect-proof cartons or
containers, or covered with insect-proof mesh or a plastic tarpaulin.
These safeguards would have to remain intact until arrival in the
United States or the consignment would not be allowed to enter the
United States. Containers transported by sea would have to be kept
closed if stored within 20 meters of a fruit fly host prior to being
loaded onto the vessel. These measures would prevent harvested fruit
from being infested by quarantine pests.
Commercial Consignments
Only commercial consignments of tomatoes would be allowed to be
imported. Commercial consignments, as defined in Sec. 319.56-2, are
consignments that an inspector identifies as having been imported for
sale and distribution. Such identification is based on a variety of
indicators, including, but not limited to: Quantity of produce, type of
packaging, identification of grower or packinghouse on the packaging,
and documents consigning the fruits or vegetables to a wholesaler or
retailer. Produce grown commercially is less likely to be infested with
plant pests than noncommercial consignments. Noncommercial consignments
are more prone to infestations because the commodity is often ripe to
overripe, could be of a variety with unknown susceptibility to pests,
and is often grown with little or no pest control.
Inspection and Phytosanitary Certificate
Each consignment of tomatoes would have to be inspected by the NPPO
of the exporting country and found free of the quarantine pests listed
earlier. Each consignment would also have to be accompanied by a
phytosanitary certificate issued by the NPPO of the exporting country,
providing the additional declaration ``These tomatoes were grown in
registered production sites in [name of country] and the consignment
has been inspected and found free of quarantine pests.'' This
requirement would certify that the provisions of the regulations have
been met.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866 and, therefore, has not been
reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed
the potential economic effects of this action on small entities. The
analysis is summarized below. Copies of the full analysis are available
by contacting the person listed under FOR FURTHER INFORMATION CONTACT
or on the Regulations.gov Web site (see ADDRESSES above for
instructions for accessing Regulations.gov).
This proposed rule would allow the importation of tomatoes from the
member States of the ECOWAS under a systems approach. Entities
potentially affected by this proposed rule are U.S. producers of fresh
tomatoes (classified under Other Vegetable (except Potato) and Melon
Farming, NAICS 111219) and importers of fresh tomatoes. Vegetable-
producing establishments are classified as small if their annual
receipts are not more than $750,000. According to the 2007 Census of
Agriculture (which has the most recent data on farm sizes), there were
25,809 farms producing tomatoes in the United States. About 68 percent
of these farms had less than 1 acre in tomatoes. Overall, 25,128 farms
(97.4 percent) had a total of 39,879 acres in tomatoes (about 9 percent
of the total planted area) and are considered small, with an average of
about 1.6 acres and an average annual income of about $8,000 in 2007.
The remaining 2.6 percent of the farms planted a total of 402,346 acres
in tomatoes (91 percent of the planted area). They averaged 591 acres,
[[Page 46211]]
with an average annual income of about $3 million.
The impact of potential tomato imports on U.S. small-entity
producers as a result of this rule would be small. The annual decrease
in producer welfare per small entity is estimated to be less than $4 or
about 0.05 percent of average annual sales by small entities, when we
assume that 1,934 metric tons of tomatoes would be exported to the
United States from ECOWAS because of this rule. The dollar decrease in
welfare for most small tomato producers would be even smaller, given
that the majority planted less than an acre in tomatoes.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12988
This proposed rule would allow tomatoes to be imported into the
United States from the ECOWAS. 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 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.
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-
2011-0012. Please send a copy of your comments to: (1) Docket No.
APHIS-2011-0012, 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.
APHIS is proposing to amend the fruits and vegetables regulations
to allow the importation of tomatoes from the member States of the
ECOWAS into the continental United States. As a condition of entry,
tomatoes from the ECOWAS would be subject to a systems approach that
would include requirements for pest exclusion at the production site,
fruit fly trapping and monitoring, and procedures for packing the
tomatoes. The tomatoes would also be required to be accompanied by a
phytosanitary certificate issued by the national plant protection
organization of the exporting country with an additional declaration
that the tomatoes had been produced in accordance with the proposed
requirements. This action would allow for the importation of tomatoes
from the ECOWAS into the continental United States while continuing to
provide protection against the introduction of quarantine pests.
The information collection activities would include a phytosanitary
certificate with an additional declaration, production site
registration, recordkeeping, and inspection of production sites.
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 3.8 hours per response.
Respondents: Foreign officials, importers of tomatoes from ECOWAS.
Estimated annual number of respondents: 2.
Estimated annual number of responses per respondent: 2.5.
Estimated annual number of responses: 5.
Estimated total annual burden on respondents: 19 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)
851-2908.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the Internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this proposed rule, please contact Mrs. Celeste
Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
List of Subjects in 7 CFR Part 319
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Rice, Vegetables.
Accordingly, we propose to amend 7 CFR part 319 as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 continues to read as
follows:
Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136
and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. In Sec. 319.56-28, a new paragraph (h) is added to read as
follows:
Sec. 319.56-28 Tomatoes from certain countries.
* * * * *
(h) Tomatoes (fruit) (Solanum lycopersicum) from member States of
the Economic Community of West African States. Fresh tomatoes may be
imported into the continental United States from member States of the
Economic Community of West African States (ECOWAS) only in accordance
with this section and other applicable provisions of this subpart. The
ECOWAS consists of Benin, Burkina Faso, Cape Verde, Gambia, Ghana,
Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria,
Senegal, Sierra Leone, and Togo Republic. These conditions are designed
to prevent the introduction of the following quarantine
[[Page 46212]]
pests: Bactrocera cucurbitae, B. invadens, Ceratitis capitata,
Ceratitis rosa, Chrysodeixis chalcites, Helicoverpa armigera, H.
assulta, Leucinodes orbonalis, Maconellicoccus hirsutus, and
Nipaecoccus viridis.
(1) Production site requirements. (i) Production sites in which the
tomatoes are produced must be registered with the national plant
protection organization (NPPO) of the exporting country. Initial
approval of production sites must be completed jointly by the NPPO of
the exporting country and APHIS.
(ii) The NPPO of the exporting country must visit and inspect the
production sites monthly, beginning 2 months before the harvest and
continuing through the end of the shipping season. APHIS may monitor
the production sites if necessary.
(iii) Production sites must be pest-exclusionary structures (PES).
The PES must have self-closing double doors. All openings, including
vents, to the outside of the PES must be covered by screening with mesh
openings of not more than 1.6 mm.
(iv) No shade trees may be grown within 10 meters of the entry door
of the PES, and no other fruit fly host plants may be grown within 50
meters of the entry door of the PES.
(2) Mitigation measures for fruit flies. (i) Beginning 2 months
prior to the start of the shipping season and continuing through the
end of the harvest, the NPPO of the exporting country must set and
maintain fruit fly traps with an APHIS-approved protein bait inside
each PES at a rate of eight traps per hectare, with a minimum of four
traps in each PES, and check the traps every 7 days. The NPPO of the
exporting country must maintain records of trap placement, trap
maintenance, and captures of any fruit flies of concern. The NPPO must
maintain trapping records for 1 year, and make the records available to
APHIS upon request.
(ii) Capture of a single fruit fly of concern inside a PES will
immediately result in cancellation of exports to the United States from
that PES. The detection of a fruit fly of concern in a consignment at
the port of entry that is traced back to a PES will also result in
immediate cancellation of exports to the United States from that PES.
In both cases, exports from the PES in question may not resume until
APHIS and the NPPO of the exporting country have mutually determined
that the risk has been properly mitigated.
(3) Harvesting requirements. The stem and calyx must be removed
from the tomato.
(4) Packinghouse requirements. (i) While in use for exporting
tomatoes to the United States, the packinghouses may only accept fruit
from registered production sites.
(ii) No shade trees may be grown within 10 meters of the entry door
of the packinghouses, and no other fruit fly host plants may be grown
within 50 meters of the entry door of the packinghouses.
(5) Post-harvest procedures. (i) The tomatoes must be safeguarded
by an insect-proof mesh screen or plastic tarpaulin while in transit to
the packinghouse and while awaiting packing.
(ii) Tomatoes must be packed within 24 hours of harvest in insect-
proof cartons or containers, or covered with insect-proof mesh or a
plastic tarpaulin for transport to 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.
(iii) If transported by sea, the containers in which the tomatoes
are packed must be kept closed if stored within 20 meters of a fruit
fly host prior to being loaded on the vessel.
(6) Commercial consignments. The tomatoes may be imported in
commercial consignments only.
(7) Phytosanitary certificate. Each consignment of tomatoes must be
accompanied by a phytosanitary certificate issued by the NPPO of the
exporting country, providing an additional declaration ``These tomatoes
were grown in registered production sites in [name of country] and the
consignment has been inspected and found free of quarantine pests.''
* * * * *
Done in Washington, DC, this 27th day of July 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-19518 Filed 8-1-11; 8:45 am]
BILLING CODE 3410-34-P